Appeal of Mack

• Decision Date: 05 October 1898
• Citation: 41 A. 242,71 Conn. 122
• Parties: Appeal of MACK.
• Court: Connecticut Supreme Court

41 A. 242

71 Conn. 122

Appeal of MACK.

Supreme Court of Errors of Connecticut.

Oct. 5, 1898.

Case reserved from superior court, Fairfield county; John M. Thayer, Judge.

Application by Charles F. Mack to the probate court to ascertain the heirs and distributees of the estate of Charles F. A. Mack, deceased. From an order ascertaining the heirs and distributees, and denying a distribution, petitioner appealed to the superior court. Questions were reserved by that court on an agreed statement of facts for the consideration and advice of this court. Affirmance of the probate court decree advised.

Following are the provisions of the will material to the issues here: "Seventeenth. I give and devise to my executors and to their successors my real estate, including the buildings thereon, situated on Franklin street, in said Stamford, in trust, nevertheless to hold the same as a place of habitation free of charge, for my said nephew and nieces jointly during the term of their natural lives, or so long as they, and each of them, shall be and remain single and unmarried; and it is my will that if at any time hereafter my said nephew or any of my said nieces shall many, such use shall thereupon cease so far as such one or ones as shall be married are concerned, but the same shall be enjoyed jointly by such of them as shall remain single and unmarried; and it is my further will and desire that, should the wife or husband of such of my said nephew or nieces as shall marry die, leaving them or surviving them, such nephew or nieces shall thereupon be entitled to the use of said premises jointly with the others, in the same manner as if they had never married, and, further, in case none of my said nieces or my said nephew shall have remained single and unmarried, or neither of them shall have become widows, before the last of my said nieces and my said nephew shall have married, then it is my will, and I hereby give my said executors and their successors the power, in their discretion, to continue said use for the benefit of my niece last married, or any or all of my said nieces, for the purpose of preventing at all times the invalidation of any policy or policies of insurance now covering or to hereafter cover the buildings upon said real estate, giving to my said executors and to their successors the right to extend and continue such use during the lifetime of such of my nieces as they (my said executors) may see fit, but upon the death of any of them said use shall thereupon at once and forever cease, so far as her or their respective husband or husbands are concerned; and in case my said nephew, or either or any of my said nieces, or all of them, shall take any steps towards the invalidating of this my last [will] and testament, or shall appeal from or in any way oppose any of the acts of my said executors or their successors in the administration of my estate as herein provided, then I hereby give to my said executors and their successors the power to discontinue such use of my said real estate as is herein given so far as such one or ones as shall in any way oppose or appeal from the administration of my estate are concerned; and my said executors and their successors shall also have the power, at any time thereafter, in their discretion, to renew such use in the same manner as if such use had never been discontinued." "Twentieth. All the rest, residue, and remainder of my estate of whatever kind and wheresoever situated I hereby give to my said executors and their successors, so as to vest in them the legal estate, but to hold the same in trust, nevertheless, for the following purposes and uses, to wit: To invest the sum of fifteen hundred (1,500) dollars in such manner and upon such security as they may deem best, and to apply the income derived therefrom, or so much thereof as may be necessary, and, if necessary, at their discretion, any or all of the principal sum, towards the payment of all legal taxes levied on my said real estate on Franklin street aforesaid, and for the continuing of any fire insurance on said buildings, and for such repairs to said buildings as may from time to time be necessary, and also to keep the entire legal estate from incumbrances of record during the natural life of my said nephew or any of my said nieces; and upon the death of my said nephew and all of my said nieces it shall be the duty of my said executors or their successors to transfer said sum, or so much thereof as shall then remain, to the Evangelical Lutheran Seminary of Gettysburg, Pa., for the use and purpose hereinafter directed. To invest the balance of said rest, residue, and remainder of my estate in such manner as, in the opinion of my said executors, shall seem best, until the same, with the accumulation of interest, shall amount to fourteen thousand (14,000) dollars, and thereafter to apply the income thereof one-half annually in equal shares to the use of my said nephew Charles F. Mack and my said nieces Christine C. Schaalman, Catharine A. Mack, and Emilie C. Schmitt, or such of them as shall then be living, during their natural life, and one-half annually, in equal shares, to the use of my said nieces Dorothea W. Mack, Anna B. Mack, and Effe J. Mack, or such of them as shall then be living; and in the event of the marriage of my said nephew or either of my said nieces his or her share of said income shall be paid to him or her, for his or her sole and separate use, and in the event of the death of my said nephew or any of my said nieces the share of such deceased shall be divided among the survivors in equal shares per capita. Twenty-First. Upon the death of my said nephew and all of my said nieces I direct my said executors or their successors to transfer all my estate, both real and personal, and wheresoever situated, to the Evangelical Lutheran Seminary of Gettysburg, Penn., and to its successors forever, in trust to apply a portion thereof, not exceeding the sum of fourteen thousand (14,000) dollars, towards the erection and completion of a church of brick or stone upon my said real estate on Franklin street, in said Stamford, for the use of the Evangelical Lutheran Church, and to apply the income of the remainder thereof towards the support of a pastor therefor, and the maintenance of said church, paying over said income in such manner as said Evangelical Lutheran Seminary of Gettysburg, Pa., may deem expedient for such purposes; and I make this bequest and devise upon the express condition that religious services held in said church in said Stamford shall be mainly conducted in the German language, and also upon the condition there shall be placed over the main entrance to said church a marble slab or tablet, on which shall be conspicuously inscribed, in memory of my mother, the following words: 'In memoriam Lucie Christine Elizabeth Mack.'"

Edwin L. Scofleld, for Charles F. Mack and others.

Nathaniel R. Hart and John E. Keel er, for Catharine A.

Mack. Nichols C. Downs, for William J. Berges.

Julius B. Curtis and Louis J. Curtis, for St. Marcus' German Evangelical Lutheran Church.

HAMERSLEY, J. The will in question was admitted to probate in 1892. The executors having declined to serve, an administratrix with the will annexed was appointed, who settled the estate, and rendered her administration account, which showed a balance in her hands, consisting of land on Franklin street, in Stamford, valued at $4,000, and personal estate valued at $12,813.95. This land and residue were devised and bequeathed in trust by the seventeenth, twentieth, and twenty-first clauses of the will, which appear in the statement. In 1893 the appellant, a nephew of the testator, and one of the cestuis que trust under the will, filed in the court of probate an application, claiming that the gift in trust was void; that the estate in the hands of the administratrix was intestate estate, and asking the court "to ascertain who are the heirs of said deceased and distributees of said estate." This application was improper. If there was any estate to distribute, the appellant should have applied for an order of distribution. The ascertainment of heirs and distributees is not in itself, and independent of distribution, a judicial act. In 1099 an act was passed prescribing the mode of distribution of intestate estate, and providing for the appointment of three freeholders to make the division. In 1812 a statute was passed authorizing the court of probate to distribute real estate devised by will to two or more persons when the will made no provision for the division, and in 1865 a statute provided for the distribution of personal estate bequeathed to two or more persons. Under these statutes it has been the practice of courts of probate to ascertain the heirs and distributees for the purpose of distribution; to order the distribution of intestate estates and of testate estates in the case of joint devisees and legatees; and when the estate is all in cash, or there is but a single distributee, to order the executor or administrator to hand over the estate without distribution. And this practice has been held lawful. Pinney v. Bissell, 7 Conn. 21; Davenport v. Richards. 16 Conn. 310, 316-318. In 1885 there was a special revision of the probate law, by which, however, the law of distribution remains substantially unchanged. The following section was added: "See. 197. It shall be the duty of the court of probate to ascertain the heirs and distributees of every intestate estate and of every testate estate so far as the will may leave the same indefinite and necessary to be defined, and in case there shall be but a single heir to whom the entire estate would descend, or in case such estate shall consist wholly of cash, such court shall order the administrator to deliver possession of, or to pay over the same, to said heir or heirs." Pub. Acts 1885, p. 514. The duty here described has always been the duty of the court of probate. The...