Appeal of Hewitt

• Decision Date: 30 October 1889
• Citation: 58 Conn. 223,20 A. 453
• Court: Connecticut Supreme Court
• Parties: Appeal of HEWITT.

20 A. 453

58 Conn. 223

Appeal of HEWITT.

Supreme Court of Errors of Connecticut.

Oct. 30, 1889.

G. Greene, Jr., and C. F. Thayer, for appellant. D. G. Perkins, for appellee.

ANDREWS, C. J. Miller S. Allen preferred his application to the probate court in the district of Norwich on the 23d day of June, 1887. He described himself to be of Montrose, Susquehanna county and state of Pennsylvania, alleged that he was the trustee duly appointed by the proper court in that state for certain persons named in the application, and asked that a portion of the estate of John J. Newton be transferred to him as such trustee. Erastus Hewitt, the executor of the will of Mr. Newton, was made a respondent to the application. The court of probate in the Norwich district made an order authorizing such a transfer to be made. From that order Mr. Hewitt appealed to the superior court for New London county, where the order of the probate court was affirmed. Mr. Hewitt now appeals to this court. At the outset it is objected that Mr. Hewitt has no such interest in the matter as authorized him to take any appeal from the order of the probate court. We think he was so affected by the decree appealed from that he had good right to take the appeal. On the one hand the liability on his administration bond to which he might be subjected if he complied with the order, and on the other hand the liability to a suit by the trustee, Allen, if he refused to comply with it, is an interest such that it is very clear he might be aggrieved.

The finding shows that John J. Newton died on the 9th day of September, 1883, resident and domiciled in the town and probate district of Ledyard. He left a will, the third and fourth paragraphs of which are as follows: "Third. I give, devise, and bequeath the use and income of all the rest and residue of my estate to the children of my two deceased sisters, Sally Smith, (who was the wife of Latham A. Smith,) and Mary L. Hempstead, (who was the wife of Gurdon Hempstead,) and, in case any child of either of my said sisters has died leaving children, the portion of said income which would go to such child of my sisters shall be paid over to his or her children; and said residue shall be divided into as many equal parts as there shall be of my said nephews and nieces, counting those who shall be living at my decease, and those who shall have died leaving children, and one of said shares set apart for the use of each of said nephews and nieces living, and for the use of the representatives of each of said nephews and nieces who shall have died as aforesaid leaving children, and the income of each of said shares paid over to the persons entitled thereto during life. Fourth. Upon the death of the nephew or niece or grand-nephews and grandnieces entitled to any of the shares aforesaid, such share shall be delivered and paid over, and I give and devise and bequeath the same to the children of such nephew or niece, grand-nephew or grandniece, share and share alike, and in case there be no such children it shall be divided among the other nephews and nieces, grand-nephews and grandnieces, in proportion to their respective shares, and the children of such nephews and nieces, grand-nephews and grandnieces, where any share shall have been distributed to such children." The will was duly proved and approved in the probate court in the district of Ledyard. Erastus Hewitt of Preston was named therein as executor. He duly qualified as such, and proceeded in the settlement of the estate. All the known debts are paid, the administration account has been settled, and the estate is ready for distribution as soon as by the terms of the will it can properly be done. The property of the estate consists mainly of personalty. No trustee was named in the will, nor has one been appointed by the probate court, to hold such property during the continuance of the life-estates therein created by the will; nor was there any direction in the will that any life legatee should have the possession of it. Mr. Hewitt has annually paid over the income of the property to the beneficiaries under the will in accordance with the order of the court of probate in the district of Ledyard. Sally...