Bankers Trust Co. of New York v. Greims

• Decision Date: 13 June 1929
• Citation: 147 A. 290,110 Conn. 36
• Parties: BANKERS' TRUST CO. OF NEW YORK ET AL. v. GREIMS ET AL.
• Court: Connecticut Supreme Court

147 A. 290

110 Conn. 36

BANKERS' TRUST CO. OF NEW YORK ET AL. v. GREIMS ET AL.

Supreme Court of Errors of Connecticut.

June 13, 1929

Rehearing Denied Oct. 4, 1929.

Case Reserved from Superior Court, Fairfield County; Earnest C Simpson, Judge.

Action by the Bankers' Trust Company of New York and others executors under the last will of Mary Hearn Greims, against Herbert Spencer Greims and others, to determine the amount to be set aside out of the estate of the testatrix by reason of the election of her surviving husband to take under the statute in lieu of the provision made for him in the will. Reserved on allegations of the substituted complaint admitted to be true, for advice of the Supreme Court of Errors. Questions answered.

Mary Hearn Greims died on May 27, 1927, testate and domiciled in Bridgeport, Conn. She left surviving her husband, Herbert Spencer Greims, to whom she was married subsequent to April 20, 1877, and an adopted son, Gerard Greims, both of whom are of age and defendants herein. No child was born to the testatrix and Herbert Spencer Greims. The defendant Gerard Greims, Jr., is a minor and the only child of Gerard Greims. The will of the testatrix was duly admitted to probate, and in it the testatrix made certain bequests and devises to her husband. In paragraph second she bequeathed to him pictures and works of art of an inventory value of $2,262. In paragraph third she devised to him real estate in New Jersey, appraised in the New Jersey inheritance tax proceeding at $75,000. In paragraph eighth she bequeathed in trust all of the shares of stock standing in her name in the New York corporation James A. Hearn & Son, Incorporated to pay the income therefrom to her husband for his life, and after his death to her son, Gerard. In paragraph 9 she created a trust for her residuary estate, and in subdivision (1) she provided that her trustees should maintain her estate in Ridgefield as a home, free of charge, for her husband during his life, at a cost not exceeding $15,000 annually, in addition to any income derived from the estate, which amount was to be charged against the income of the testatrix from certain real estate in New York. On March 31, 1927, the testatrix made a contract whereby she sold all of the shares of stock owned by her in the James A. Hearn & Son, Incorporated, for the sum of $472,000.

On June 8, 1927, Bankers' Trust Company of New York qualified as executor of the will of the testatrix, and on the same day Herbert Spencer Greims filed with the court of probate for the district of Ridgefield a written notice of his election to take his statutory share of the estate in lieu of the provision made for his benefit in the will. Thereafter Herbert Spencer Greims qualified as executor, with the proviso, contained in his bond, that his acceptance of the trust should in no wise prevent his taking his statutory share, pursuant to his election theretofore filed, and Gerard Greims consented in writing that Herbert Spencer Greims should act as executor, without thereby waiving his right to the statutory share so elected by him. The property of the testatrix, as inventoried in the probate court for the district of Ridgefield, amounted to $2,180,129.10, of which $47,504 represented real estate in Ridgefield. In addition, the testatrix owned tangible personal property, outside of Connecticut, having an appraised value of $112,405. She also owned real estate in New York, now under contract of sale by the executors for $619,333.33, and also real estate in New Jersey, appraised in tax proceedings there at $75,000. Additional assets having an appraised value of $657 were taken over by the executors.

The plaintiffs, as executors, have taken possession of the tangible personal property outside of Connecticut, and have administered the same together with the assets listed in the inventory on file. The plaintiffs have not qualified as executors or trustees in New York or New Jersey.

Haines and Hinman, JJ., dissenting in part.

Charles D. Lockwood, of Stamford, for plaintiffs.

Ralph Royall, of New York City, for defendant Herbert Spencer Greims.

Ellwood Thomas, of New York City, for defendant Cooper Union for the Advancement of Science and Art.

George M. Skene and David M. Rosen, both of Stamford, for remaining defendants.

Argued before WHEELER, C.J., and HAINES, HINMAN, BANKS, and JOHN RUFUS BOOTH, JJ.

WHEELER, C.J. (after stating the facts as above).

Two questions are reserved for our advice which require an answer:

First. Should the value of the real estate owned by the testatrix at her death and situated outside of Connecticut be taken into consideration in determining the one-third to be set aside to provide the amount whose use the husband would take under his election under the statute? In other words, should the total value of the real estate in the states of New York and New Jersey, $694,883.33, be added to the gross value of the estate as inventoried in the probate court in Ridgefield, and the husband's one-third taken from this total, instead of from the net total of the estate, less debts and administration charges, as inventoried in the probate court? The solution of this problem depends entirely upon the construction to be accorded section 5055, Gen. St. 1918, as amended by chapter 221, Pub. Acts 1921, which we quote in the footnote.^[1]

Counsel in behalf of the husband's claim finds support in the broad language used in this statute in fixing the measure of his interest: " * * * The survivor * * * shall be entitled to the use for life of one-third in value of all the property real and personal, legally or equitably owned by the other at the time of his or her death after the payment of debts and charges against the estate." Disclaiming his purpose to have this court give to this statute an extraterritorial effect, his contention is that the language of the statute requires that the value of all of the property, wherever situated, should be taken in determining the measure of the interest created by this statute. If the statute ended with the part quoted, it might be difficult to successfully differ with the claim in behalf of the husband; the statute does not end at this point, but as it continues makes clear the legislative intent to include no property in fixing " one-third in value of all the property," except such property as is inventoried and is distributable in this jurisdiction. The legislative intention manifested in the statute must guide the court in its construction. We must construe the statute in its entirety; its sentences cannot be segregated, and their meaning extracted, one by one, apart from the rest.

The general terms of the provision, " one-third in value of all the property" are qualified and explained by later parts of the statute. Indeed, these general terms are followed by a semicolon and that by the concluding clause of the sentence, " such third to be set out by distributors appointed by the court of probate in any property, real or personal or both, according to the judgment of such distributors." The duties of distributors on intestate estates " are statutory and ministerial, and they distribute the estate as they find it in the hands of the executor or administrator after the allowance of the final account." Cone et al., Appeal from Probate, 68 Conn. 84, 90, 35 A. 781, 782. Distribution of intestate estate of real estate owned by a testator in a jurisdiction other than that of his domicile may be made in the domicile of the ancillary administration according to the law of the domicile. There can be no distribution, in the original and principal administration, of property situated in a foreign jurisdiction, unless it is by order of court brought from the ancillary to the principal jurisdiction. Lawrence v. Kitteridge, 21 Conn. 577, 584, 585, 56 Am.Dec. 385. The estate of a testator within the jurisdiction of his domicile comprises all of his real estate within the state and all of his personal property everywhere, and the inventory is made up of these kinds of property, but it excludes his real estate outside the state of the domicile.

Distributors are without authority to distribute any property of the estate which has not come into the hands of the executor or administrator, or which has not been inventoried. The distributors appointed by the probate court to set out the one-third in value of all of the property of the estate to the surviving husband or wife are vested with like authority to that of the distributors of intestate estates. They can only distribute the one-third from the property in the hands of the executor or administrator. Any property in their hands must be inventoried; real estate outside the state of the domicile cannot be inventoried. Edwards v. White, 12 Conn. 28, 34, 35. " Such inventory [in the case of intestate estate] is the basis and foundation upon which all the other proceedings prescribed by the statute, or requisite to be had, rest and depend." Frisbie Adm'r v. Preston et al., 67 Conn. 448, 35 A. 278, 280.

That a like construction is the necessary construction to place upon this language of the statute is manifest when consideration is given to the statutory particularity of our probate procedure; with all of its definiteness, we find no provision made for ascertaining the value of the real estate outside the jurisdiction of the intestate, no appraisal required or provided for, and no adjudication prescribed by a court where the real estate lies. We are asked to adopt a construction that " one-third in value of all the property" means one-third of all the property, wheresoever it may be situated, when no ancillary administration has been taken out in New York or New Jersey, and no ascertainment there...