Bill v. Payne

• Decision Date: 30 June 1892
• Citation: 25 A. 354,62 Conn. 140
• Parties: BILL v. PAYNE et al.
• Court: Connecticut Supreme Court

25 A. 354

62 Conn. 140

BILL

v. PAYNE et al.

Supreme Court of Errors of Connecticut.

June 30, 1892.

Case reserved from superior court, Windham county.

Suit by Arthur Q. Bill, administrator with the will annexed of Charlotte H. Brown, deceased, against Helen E. Payne, Emily M. Perry, Levi J. Hammond, and Hirain W. Richmond, for construction of will.

C. E. Perkins and M. A. Shum way, for L. J. Hammond and Emily M. Perry.

J. Halsey and C. E. Snarls, for E. W. Payne, E. W. Payne, guardian, and Helen E. Payne.

CARPENTER, J. This is a suit by an administrator with the will annexed for the construction of the will of Charlotte H. Brown, deceased. The will is as follows: "I, Charlotte H. Brown, of Brooklyn, Conn., being of sound mind, give all of my property, after my just debts and funeral expenses are paid, to my sister, Mrs. Mary Ann Mosely, and my nephews and nieces, namely, Mrs. Emily Perry, Mrs. Mary Ann Harkness, Levi Johnson Hammond, H. Griffin Hammond, and Hiram Warren Richmond, to be equally divided between them." Mary Ann Mosely was a sister of the half blood, and Hiram W. Richmond is a nephew of the whole blood. Helen E. Payne, sister, and Hiram W. Richmond, are the next of kin, and the legal heirs. Mary Ann Mosely, Mary Ann Harkness, and H. Griffin Hammond died before the testatrix did. In behalf of the surviving legatees (except Richmond) it is contended that the shares of the deceased legatees do not lapse, but go to the survivors. In behalf of Mrs. Payne and said Richmond (they being relatives of the whole blood) It is contended that said shares lapse, and, being intestate, should be distributed to them as heirs at law. That is the question in this case.

Counsel for the surviving legatees say, and say truly, that in construing wills courts will seek for and give effect to the intention of the testator. We apprehend, however, that the intention which controls is that which is positive and direct, rather than negative and consequential. That is, if property is given to A. for the purpose of disinheriting B., the intention to give is of more importance than the intention not to give. In this case the intention to give the property to the parties named is primary, direct, and 'positive, and is the intention which must prevail. It is that which the court will endeavor to carry into effect, without reference to the motive which prompted it. The intention that Mrs. Payne should take nothing by the will is negative in its character, is incidental and consequential. That is an intention that the court will not enforce, except as it enforces the positive provisions of the will. Conceding, then, that the testatrix intended to disinherit her sister, it must be remembered that she could only do that by effectively giving her property to others. That she attempted to do. That she failed was owing to events which occurred after making her will,—events for which she made no provision, as she might have done. It frequently happens that legatees die during the lifetime of the testator. The testatrix could have provided for such a contingency by giving it to the survivors, or to other parties....