Appeal of Wilcox from Probate

• Decision Date: 29 December 1886
• Citation: 54 Conn. 320,8 A. 136
• Court: Connecticut Supreme Court
• Parties: Appeal of WILCOX and others from Probate.

8 A. 136

54 Conn. 320

Appeal of WILCOX and others from Probate.

Supreme Court of Errors of Connecticut.

December 29, 1886.

Appeal from superior court, Hartford county.

A probate decree appointing a certain person trustee was reversed by the superior court on appeal to it. Upon another decree, refusing to appoint a certain other person, appealed from in like manner, no action was taken. Opinion states the facts.

C. E. Perkins, for original appellants.

T. M. Maltbie, for original appellees.

CARPENTER, J. A testator made provision for his own family, a brother, a nephew, and a niece, and then gave the residue of his property in trust for his daughter. At her decease, without children, the property so held in trust is to be divided into 16 equal shares, which are given to the persons named. Immediately following the disposition of the trust property is the twenty-second clause of the will, which reads as follows: "I give and devise all the said trust fund, and also to include all the estate of every kind which I shall own at my decease, not otherwise disposed of by this will, to the above-named devisees in manner as above named, to said devisees, to them and to their several heirs, forever." In the twenty-third clause he provides for a family monument. In the twenty-fourth clause he repeats substantially his disposition of the trust fund as follows: "It is to be understood, and it is my will, that after the decease of my wife, Cordelia, and after the decease of my daughter, Adelaide E., said Adelaide E. leaving no heirs of her body, such trust is to cease, and all of my estate of every kind is to be divided into sixteen equal shares, and to be distributed to the devisees above named, or to their heirs, to be to them and their heirs forever." The following clauses, to and including the thirty-first, relate to matters not material to our present inquiry. The thirty-second clause, so far as material, is as follows: "Should a vacancy occur of a trustee as above named, by death or otherwise, it is my will that a trustee to fill such vacancy shall be nominated to the judge of probate by at least one-third of the devisees above named, and in like manner from time to time as such vacancy may occur, so that there shall be at all times at least two trustees during the continuance of said trust, to have charge of said trust fund."

A trustee's place became vacant. Ten of the seventeen persons to whom the sixteen shares of the trust fund are given nominated to the judge of probate, as a suitable person to fill the vacancy, Lucius T. Wilcox, of Illinois. Five of said persons, uniting with the widow and daughter, nominated John W. Stedman. The probate court appointed Mr. Stedman, and refused to appoint Mr. Wilcox. An appeal was taken from the decree appointing Mr. Stedman, and also from the order refusing to appoint Mr. Wilcox. The superior court reversed the decree appointing Mr. Stedman, but took no action on the decree refusing to appoint Mr. Wilcox. Both parties appealed to this court.

Two questions are involved in the case, on which both appeals depend: (1) Does the expression "devisees above named," in the thirty-second clause of the will, include all the beneficiaries previously named, or does it include only those who are ultimately to participate in the trust fund? (2) Has the court of probate a discretion to refuse to appoint a suitable person duly nominated according to the terms of the will?

1. We think that the twenty-second and twenty-fourth clauses use the expression "devisees above named" as referring exclusively to those who are entitled to the fund at the termination of the trust. Counsel for the appellees contend that in the twenty-second clause it includes both the widow and daughter, but concede that they are excluded in the twenty-fourth clause. We think it is used in the same sense in both. In the ninth the testator describes the trust fund, and names the trustees. In the tenth he disposes of the income during the continuance of the trust. In the eleventh, at the termination of the trust, he divides the principal into 16 equal shares. In the twelfth to the twentieth, inclusive, he names 17 persons who are to take those shares, one of the shares being given to two persons jointly. In the twenty-first, which has no connection with this subject, he gives a note to a nephew. In the twenty-second he resumes, and sums up the disposition he has made of the body of the trust property. It will be noticed that he describes the property in nearly the same language he uses in the ninth and eleventh clauses: "All the said trust fund, and also to include all the estate of every kind which I shall own at my decease, not otherwise disposed of by this will, to the above-named devisees in manner as above named, to said devisees, to them and to their several heirs forever." There is here no reference to income. The language used is appropriate to the gift of a fee, and not appropriate to the gift of a life-estate. The property referred to in this clause is mainly, if not wholly, the trust fund; and, as the daughter takes no fee in that, she is evidently not one of the devisees here intended. In the twenty-third clause he again drops the subject, and provides for a monument. In the...