Bancroft v. Sec. Co. of Hart Ford

• Decision Date: 20 December 1901
• Citation: 50 A. 735,74 Conn. 218
• Parties: BANCROFT v. SECURITY CO. OF HART FORD.
• Court: Connecticut Supreme Court

50 A. 735

74 Conn. 218

BANCROFT

v. SECURITY CO. OF HART FORD.

Supreme Court of Errors of Connecticut.

Dec. 20, 1901.

Reservation from superior court, Hartford county; Alberto T. Roraback, Judge.

Action by Mary E. Bancroft against the Security Company of Hartford. A demurrer to a portion of the answer was overruled, and the cause was reserved on an agreed finding of facts for the consideration of the supreme court Judgment advised for plaintiff.

William C. Case and William H. Ely, for plaintiff.

Charles E. Gross, for defendant TORRANCE, C. J. (after stating the facts). The plaintiff is a daughter of Mary E. Bancroft, who died in July, 1899, leaving by will certain property to the defendant in trust. By said will, after the payment of debts and expenses of settling the estate, the testatrix bequeathed $1,000 to each of her two brothers, three small sums to two nephews and a niece, her wearing apparel, books, pictures, and household effects of every kind and $1,000 to the plaintiff, and then disposed of the "rest and residue" of her estate of every kind in the seventh and eighth clauses of her will. The main question in the case arises under the seventh clause of the will, which reads as follows: "The rest and residue of my estate of every kind I give to the Security Company of said Hartford, in trust for the following uses and purposes, viz.: To take and have the entire management of the same, with power to sell, invest, and reinvest the same at its discretion, and in such securities as it shall deem for the best interest of said estate; and I direct said trustee to pay over the net income semiannually, during her life, to my said daughter, Mary H. Bancroft, the first payment to be made six months after the trust fund shall be paid to said trustees by my executors." The executors under said will filed their final administration account in the court of probate on the 27th day of January, 1900, and said account was on the same day duly accepted and allowed. In that account they charged themselves with the amount of the inventory, and also with the income of the estate after the death of the testatrix. On that same day the court of probate found that there remained for distribution the sum of $33,397.28 in personal estate, and ordered it to be transferred to the defendant, according to the terms of the will, which order was complied with. The defendant received the amount above specified, less the amount of the United States inheritance tax, accepted said trust, and entered upon the duties thereof. No appeal was ever taken from the orders of the probate court accepting said account and ordering distribution, and the time for taking any such appeal has passed. Between the death of the testatrix and the time when said fund was turned over to the defendant there had been received by the executors, as income of the estate, accruing after the death of the testatrix, the sum of $1,301.90, as shown by the administration account; "but none of said sum has ever been paid to the plaintiff, either by the executors of said estate or by the defendant." This suit is brought to recover the income thus accruing between the death of the testatrix and the time when the fund was turned over to the defendant, and the defendant claims that upon the aforesaid facts the plaintiff is not entitled to said income.

One of the important questions in the case is whether the plaintiff is entitled under the will to the income from the death of the testatrix, or only from the date when the estate was turned over to the defendant by the executors; and the answer to this question depends upon the further question whether the will itself fixes the time when the life use of the plaintiff commences, for, if it does so, the will must govern. The will does not, in express terms, fix such a time, but the defendant claims that the provision that the income shall be paid semiannually, and that the first payment thereof shall be made in six months after the estate shall be turned over to the trustee, read in the light of the record in this case, does fix such time by necessary implication; and that the time so...