Appeal of Coe

• Decision Date: 29 May 1894
• Court: Connecticut Supreme Court
• Parties: Appeal of COE.

30 A. 140

64 Conn. 352

Appeal of COE.

Supreme Court of Errors of Connecticut.

May 29, 1894.

Appeal from superior court, Middlesex county; Prentice and Wheeler, Judges.

Appeal of Daniel B. Coe, executor of Emily S. Coe, from two orders of the probate court. In the superior court appellees demurred to reasons of appeal. Demurrer sustained, and the executor appeals. Affirmed.

Henry G. Newton and Philip P. Wells, for appellant.

Burton Mansfield and Donald G. Perkins, for appellees.

FENN, J. The appellant, Daniel B. Coe, was married to Emily S. Coe in 1862. She died in January, 1892, leaving an estate in personal property valued at $42,000. She also left a will, in which she first provided for the payment of her just debts and funeral charges; then gave three legacies,—one of $3,000 to her sister, and two of $1,000 each to granddaughters of her husband. These legacies she provided should be paid by her executor within six months after her decease. She then gave to her husband the "rest and residue" of all her property during the term of his natural life, "to receive the rents, issues, and profits thereof for his own use, benefit, and support." She then gave the remainder over to certain relatives of her own, other than her sister, "to them and their heirs, absolutely and forever." She further provided as follows: "Sixth. I direct that my said husband shall have the exclusive management and control of my said property, without interference from any one, and without giving any security for the same or the management thereof. Seventh. I appoint my husband, Daniel B. Coe, executor of this, my last will and testament, and direct that no bond be required of him." The appellant presented said will for probate. It was proved, and he was duly qualified as executor thereof. Appraisers were appointed, and an inventory of assets prepared, filed, and accepted. No suggestion was made in such document that the estate was the owner of a remainder interest only in such assets, and no claim that the appellant had any statutory title thereto or right therein. Within six months after the death of the testatrix, the appellant paid the legacies in accordance with the directions of the will. In December, 1892, the appellant, as executor of the will of Emily S. Coe, presented to the court of probate an application reciting the facts, alleging himself, as husband of the decedent, to be the legal owner of "the use, interest, and income of all the property comprised in the estate of said decedent," and asking for an order "that a sufficient amount of the property of the estate, subject to the life interest of the applicant, be sold to raise so much money as would be necessary to pay the legacies, and any other amounts which may be needed in the settlement of the estate." It was stated that a total sum of $5,500 would be required for such purpose. This application was opposed by those entitled under the will to the remainder interest, and was denied by the court. Afterwards, in February, 1893, the appellant presented to the court of probate his account as executor, which was in the ordinary form, charging himself with the entire personal assets of the estate and with the income and dividends thereon, and then crediting himself with the amount of the legacies paid, probate fees, advertising, traveling, incidentals, legal services, income, and dividends, and a sufficient amount of securities on hand to balance the debit side. To this account was appended the following: "(11) The executor, while claiming under the will the right to what the will gives him, except as to the watch and jewelry, claims also his legal life estate in the five thousand dollars used to pay legacies, and insists upon his right to be reimbursed for his life interest in the same, and to sell the remainder in sufficient property therefor." The court allowed the account as stated, except the item recited, which it disallowed. From these two decrees of the court of probate, namely, the denial of his application as executor to sell, and the disallowance of item 11 of the account, the appellant appealed to the superior court, which court sustained a demurrer to his reasons of appeal, in which the above facts and proceedings were stated, and dismissed the appeal; and from that judgment the present appeal to this court was taken.

In reference to this proceeding, we ought perhaps to notice the exceptional and unusual manner in which it comes before us. The original appeal from the court of probate, embracing both decrees, was taken by Daniel B. Coe, executor. The reasons filed in the superior court were signed by said Daniel B. Coe, both as executor and as an individual. The appeal to this court is also taken by him in both capacities. On the other hand, the demurrer of the appellees to the reasons of appeal, which was sustained by the superior court, was so general in character that it would require very liberal construction to regard it as the court below appears to have done, without objection by the appellant, as complying with Gen. St. § 873, which provides that "all demurrers shall distinctly specify the reasons why the pleading demurred to is insufficient" Nor is the above statement exhaustive as to the informalities and infelicities in the makeup of the case presented to us. It is therefore only with a distinct declaration that our present action must not be regarded as establishing any precedent by which our future conduct may be regulated, and somewhat in view of an express waiver upon the record. signed by counsel for the appellees, of objections to the appellant's appeal, that we have concluded to fully consider the real question involved as if in all respects correctly before us, believing that thereby we shall best promote the interests of justice, and most speedily terminate an unfortunate contention.

By virtue of the statute law of this state (Gen. St. § 2792) the appellant had a vested life interest in all the personal property of his wife. It is true that he held such property in trust; but the wife being dead, and there being no issue of the marriage, his right to receive and enjoy the income thereof during his life was absolute. It was not in the power of his wife, by her own act and without his consent, either by will or otherwise, to place any limits or restrictions on that right The language of this court in Sill v. White, 62 Conn. 435, 26 Atl. 396, a case on which the appellant greatly relies, is equally applicable in this case. The gift of Mrs. Coe of a life interest in her personal property "for the life of her husband was an attempt to give what she did not have to give. It was not in her power to direct where this estate should vest. Upon this subject the law spoke, and spoke unqualifiedly. It was, furthermore, an attempt to give to one who, by a higher right than the act of the testator, was to become, upon the testator's decease, entitled to the estate purported to be given." It follows that the wife could impose no duty upon the husband to part with any portion of the estate, for the purpose of paying legacies out of it, during his life. If he chose to insist upon his statutory right, there was no power in the wife, and there is none in the law, by the exercise of which he could be prevented from so doing. The will, however, gave him certain privileges in reference to the life estate which the testatrix sought to create that the statute did not confer. It also released him from certain obligations in regard to such estate, which the statute imposed. Gen. St §§ 2793, 2795.

The appellant, as we have seen, claims his statutory rights, and also, "under the will, the right to what the will gives him." He insists that Sill v. White is an authority in direct support of such claim. In that case it appeared that the husband was executor of the will, accepted the trust, and settled the estate. But, so far as the property in controversy was concerned,—real estate, in which the law gave him a tenancy by the curtesy, and the will a life interest, together with a power,—it was expressly declared in the opinion that he had made no election as to which title he would take. "He has said nothing, has done nothing. He has remained passive and silent, as he had a right to do. He has not even indicated that he proposes to avail himself of the privileges which the will gives him. Manifestly he cannot thus be held to have lost his life estate by the curtesy." In the case now before us the husband has surely ...