Appeal of Clarke

• Decision Date: 05 January 1898
• Citation: 39 A. 155,70 Conn. 195
• Court: Connecticut Supreme Court
• Parties: Appeal of CLARKE.

39 A. 155

70 Conn. 195

Appeal of CLARKE.

Supreme Court of Errors of Connecticut.

Jan. 5, 1898.

Appeal from superior court, Fairfield county; William T. Elmer, Judge.

Petition by Henry P. Clarke, as administrator of the estate of Julia Clarke, deceased, asking that the court of probate hear the claims of divers persons who claimed to be entitled to have certain real estate distributed to them, and determine to whom it should be distributed. Notice was given to Nancy B. Clarke, deceased's minor sister, and John H. Perry was appointed by such court her guardian ad litem. From a decree that Nancy B. Clarke was the sole heir and distributee, Henry P. Clarke appealed to the superior court, which also appointed Perry guardian ad litem of Nancy B. Clarke. Case reserved for the advice of the supreme court of errors on facts found in the superior court. Affirmance of decree of court of probate advised.

The finding stated the following facts: Henry P. Clarke, the appellant, while domiciled in the state of South Carolina, intermarried with Julia Hurd, in the state of New York, in the year 1886, and the married couple immediately returned to the state of South Carolina, which then became their domicile of marriage. In 1889, a daughter, Nancy B. Clarke, was born, who still survives, and is the appellee herein. In December, 1893, another daughter, Julia Clarke, the distribution of whose estate is now in question, was born. There were no other children born of said marriage. On February 10, 1894, the wife, Julia H. Clarke, died. On May 20, 1894, the daughter, Julia Clarke, died, leaving no creditors. At all times since said marriage, the state of South Carolina has been the domicile of the appellant and his family. During coverture, and at the day of the dates thereof, Julia H. Clarke executed the following will and codicil:

Will: "I, Julia H. Clarke, wife of Henry P. Clarke, residing near Eastover, in Richland county, state of South Carolina, being of sound and disposing mind and memory, do make and ordain this, my last will and testament, and hereby revoke all other wills by me at any time heretofore made. First. I direct that all my just debts and my funeral expenses shall be fully paid by my executor hereinafter named. Second. I direct that a portion of my estate sufficient to produce one thousand dollars ($1,000) annually shall be safely invested by my executor, and the said one thousand dollars be paid annually to my father, S. H. Hurd, now of New York, in quarterly payments, during the term of his natural life. Third. I give and bequeath to Mrs. Laura Sherwood, of Bridgeport, Connecticut, the sum of ten thousand dollars ($10,000). Fourth. I give and bequeath to Miss Agnes C. Patterson, of said Bridgeport, the sum of five thousand ($5,000) dollars. Fifth. The rest, residue, and remainder of my estate, real and personal, of whatever description, or wheresoever situated, I give, devise, and bequeath as follows: One-half thereof to my husband, Henry P. Clarke, and one-half thereof to my said husband, in trust for my daughter Nancy, until she becomes twenty-five years of age, and then to pay the whole sum over to her. But, if she shall marry before that age, with the consent and approval of her father, or, in case of his death, with the consent and approval of her then guardian, then I direct that one-half of her share shall be paid to her upon her marriage, and the other half when she becomes twenty-five. In case I shall leave surviving me one or more children besides my daughter Nancy, then I direct that the said rest, residue, and remainder of my estate shall be divided equally among my said husband and all of my children, share and share alike, my husband and my children sharing per capita, and the shares of said children to be held in trust, as above provided, in the ease of Nancy, as being the only one. And I give, devise, and bequeath the said rest, residue, and remainder as aforesaid to each and to their heirs, and each of them, forever. I constitute and appoint my said husband, Henry P. Clarke, to be executor and trustee of this, my will, and direct that no bonds be required of him under either appointment. In witness whereof, I have hereunto set my hand and seal at Bridgeport, Connecticut, this twenty-fifth (25th) day of May, A. D. 1891. Julia H. Clarke. [Seal.]" Codicil: "I, Mrs. Julia H. Clarke, wife of Henry P. Clarke, formerly residing near Eastover, in the county and state aforesaid, but now residing in the city of Columbia, of said county and state, having made my last will and testament beariug date the twenty-fifth day of May, A. D. 1891, at Bridgeport, in the state of Connecticut, do now make this codicil to be taken as a part of the same: First. I hereby ratify and confirm my said will in every respect, save as far as any part of it is inconsistent with this codicil. Second. I hereby revoke the third item of said will, and in lieu thereof I will and direct that a portion of my estate sufficient to produce five hundred dollars annually shall be safely invested by my executor, and the said five hundred be paid annually in quarterly payments to Mrs. Laura Sherwood, of Bridgeport, Conn., during the term of her natural life. Three. I further will and direct that after the death of Mrs. Laura Sherwood that the portion of my estate which shall at. that time be invested for her benefit under the second item of this codicil shall then become a portion of my estate, and is hereby disposed of as directed in item five of my said will; and I further direct that, if said Mrs. Laura Sherwood shall die before my death, then the investment directed for her benefit under item two of this codicil shall be, and is hereby, disposed of as directed in item five of my said will. Four. I further will and direct that after the death of my said father, S. H. Hurd, that the portion of my estate which shall at that time be invested for his benefit as directed in Item two of said will shall then become a portion of my estate, and shall be disposed of as directed in item five of my said will; and I further direct that, if my said father shall die before my death, then the investment directed for his benefit in said item two shall be disposed of as directed in item five of my said will. In witness whereof, I, the said Julia H. Clarke, have hereunto subscribed my name and set my seal to the foregoing codicil of four items at Columbia, in the said state, this, the 11th day of November, A. D. 1893. Julia H. Clarke. [L. S.]"

Said will and codicil were duly established in the court of probate for Richland county, in the state of South Carolina, and copies thereof have become part of the files and records of the probate court for the district of Bridgeport, pursuant to the provisions of section 550 of the General Statutes. The daughter. Julia Clarke, owned no property in Connecticut at the time of her decease except such as had or should come to her under her mother's will. The property of the mother, Julia H. Clarke, possessed by her at the time of her decease, consisted of $825.25 in personalty, the home plantation in South Carolina, valued at $20,000, and real estate in Bridgeport, in this state, valued at $138,000. This lastmentioned property was distributed to her the day before her death in a partial distribution of the estate of her grandfather, P. T. Barnum, who died April 7, 1891, leaving a will under which she took a legacy of $100,000 (paid before said partial distribution) and one-sixth of the residue of his estate. She owed debts amounting to $30,000 at the time of her decease. The estate of the daughter, Julia Clarke, referred to in the petition to the court of probate, consisted of an undivided one-third interest in the real estate so as above distributed to her mother. The value of the said Julia H. Clarke's entire interest in the estate of her grandfather was several hundred thousand dollars. Both real estate and personal property of large value remained in the said Barnum residue at the death of the mother, Julia H. Clarke, for future distribution. The real estate so remaining is situated in Connecticut, New York, and Kansas.

Henry P. Clarke (the appellant herein), "as executor of the last will and testament of Julia H. Clarke, and trustee of the estate of Nancy B. Clarke, his infant daughter, under said will," brought suit against Nancy B. Clarke (the appellee herein) in the circuit court for the Fifth judicial circuit of South Carolina, praying for the "judgment and direction of the court in regard to the true construction of said will, and especially the fifth and residuary paragraph thereof, and as to his powers and duties as such executor and trustee under said will in the premises, and for such further relief as may be just and proper." A guardian ad litem was appointed for the infant defendant, who duly answered, and, after hearing had, the court "ordered, adjudged, and decreed that the will of the testatrix, Julia H. Clarke, worked an equitable conversion into personalty at the time of her death of all her real estate of whatsoever description and wheresoever situated, and that the plaintiff, as executor, receive, administer, and account for the same as personalty, and that he is by the said will authorized and empowered to sell and convey the same for the purpose of executing said will, and that he have leave to apply for further orders and directions upon the foot of this decree." This judgment was, upon appeal, subsequently affirmed by the court of last resort in South Carolina, as will appear by the report thereof in 46 S C. 230, 24 S. E. 202, which was made by reference a part of the record in this cause; and said decision was considered by the court of probate for the district of Bridgeport.

By the law of the state of South Carolina the court to which the action was brought had jurisdiction both of the persons and of the subject-matter of that suit; and by a like law the appellant shared...