Brewster v. Brewster

• Decision Date: 15 December 1964
• Citation: 206 A.2d 106,152 Conn. 228
• Court: Connecticut Supreme Court
• Parties: Thelma V. BREWSTER et al., Trustees (ESTATE of William M. BREWSTER), et al. v. Margaret O. BREWSTER et al., Executors and Trustees (ESTATE of John H. BREWSTER), et al. Supreme Court of Errors of Connecticut

Page 106

206 A.2d 106

152 Conn. 228

Thelma V. BREWSTER et al., Trustees (ESTATE of William M BREWSTER), et al. v. Margaret O. BREWSTER et al., Executors and Trustees (ESTATE of John H. BREWSTER), et al.

Supreme Court of Errors of Connecticut.

Dec. 15, 1964.

J. Kenneth Bradley, with whom were Robert J. Cooney and, on the brief, Huntley Stone, Bridgeport, for appellants (plaintiffs).

Curtiss K. Thompson, with whom was H. Chandler Clark, New Haven, for appellees (defendants McFarland et al.).

Hereward Wake, Westport, for the named defendant and others, executors and trustees.

Before KING, C. J., and MURPHY, ALCORN, SHANNON, and LEIPNER, JJ.

ALCORN, Associate Justice.

This is an action for a declaratory judgment. Three of the defendants appeared specially and moved that the action be erased from the docket for lack of jurisdiction. The ground of the motion in substance is that these defendants are nonresidents who have not entered a general appearance, that they were not served with process in Connecticut and that the court did not have before it a res upon which in rem jurisdiction could be based. The court granted the motion, and the plaintiffs have appealed.

The material facts are as follows: John H. Brewster died, a resident of Connecticut, in September, 1936, leaving a will which was admitted to probate in Connecticut in 1936. The will provided, in major part, that the residuary estate be held in trust, the income therefrom to be paid to the widow for life with permission to invade the principal for her benefit; that on the death of the widow the principal and any undistributed income of the trust fund be divided between two nephews, William M. Brewster and E. Franklin Brewster; and that if both nephews predeceased the testator and left no children, the trust fund be divided among the surviving children of three named nieces. The widow, the life beneficiary of the trust, is still living. Both nephews died childless following the testator's death. William, one of the nephews, created an inter vivos trust in 1959, assigning to his trustees all his right, title and interest in the estate of John H. Brewster and, by will, left all of his remaining property to his wife.

The plaintiffs in this action are the trustees of William's inter vivos trust and the executors under his will. All three plaintiffs are nonresidents. They seek a declaratory judgment as to whether William had, and his estate is now entitled to, a vested remainder in the trust under the will of John H. Brewster, subject only to defeasance by invasion of the principal for the benefit of John H. Brewster's widow. Named as defendants are the executors and trustees under John H. Brewster's will, the three trustees of a testamentary trust under the will of E. Franklin Brewster, the other nephew, seven children of John H. Brewster's nieces, the executor of a deceased child of one niece, and the unborn issue of one niece. All of the living defendants except the widow are nonresidents of Connecticut. The plaintiffs applied to the court for an order of notice to be served by registered mail on each of the living nonresident defendants. An order for such service was issued, and the sheriff's return recites service in the manner ordered. No attachment or sequestration of any property of any of the defendants was sought. The widow of John H. Brewster, who is an executor and trustee of her husband's will, was personally served in Connecticut. The widow, the trust company in New York which is her coexecutor and cotrustee under the John H. Brewster will, and two of the children of John H. Brewster's nieces have entered general appearances. One of E. Franklin's trustees has appeared generally, but his two cotrustees have not appeared. Three children of John H. Brewster's nieces have appeared specially and have made the motion to erase for lack of jurisdiction which forms the subject matter of this appeal. They also filed a plea in abatement and to the jurisdiction which is not before us. The remaining two children and the executor of the deceased child have not appeared. No effort appears to have been made to have the unborn issue of one of the nieces represented.

The plaintiffs base their request for a declaratory judgment on the claim that William's interest in the estate of John H. Brewster is a vested remainder, subject only to defeasance by invasion of the principal of the trust fund for the benefit of John H. Brewster's widow, with the result that William's estate may be subject to a substantial estate tax. They claim that, on the other hand, if William's interest should be determined not to be vested, or if it has been 'divested' through invasion of principal, then his estate would not be subject to a substantial estate tax and the remainder would be distributed to the defendant children of John H. Brewster's nieces or their legal representatives. Consequently, the plaintiffs assert that the interests of the defendant beneficiaries under John H. Brewster's will are uncertain and adverse to the plaintiffs' interests so that there are actual bona fide and substantial questions and issues in dispute between the parties and substantial uncertainty of legal relations between them which require judicial determination.

The question whether the plaintiffs have stated a proper case for a declaratory judgment is not before us. That would present the next obstacle facing the plaintiffs in the event they were to prevail on the jurisdictional issue here presented. While a declaratory judgment action may be maintained, under proper circumstances, to determine rights which are 'contingent upon the happening or not happening of some future event'; Sigal v. Wise, 114 Conn. 297, 302, 158 A. 891, 893; nevertheless our courts have a wide discretion to leave parties to seek redress by some other form of procedure. Practice Book § 309(c); Herald Publishing Co. v. Bill, 142 Conn. 53, 58, 111 A.2d 4; Hill v. Wright, 128 Conn. 12, 17, 20 A.2d 388. Whether factors such as the possibility of the exhaustion of the trust fund by invasion of principal; Hartford National Bank & Trust Co. v. Harvey, 143 Conn. 233, 244, 121 A.2d 276, 71 A.L.R.2d 1325; and the circumstance that procedure exists for obtaining a refund of an overpayment of federal estate taxes with interest; Int.Rev.Code of 1954, § 6511(a), as amended, 72 Stat. 1663; § 6532(a), as amended, 72 Stat. 1665; § 6611, as amended, 72 Stat. 1640, 1664; are sufficient to deprive the plaintiffs of the relief sought are questions which we do not consider.

The motion to erase admits all well-pleaded facts, invokes the existing record and must be decided upon the record alone. Brown v. Cato, 147 Conn. 418, 419, 162 A.2d 175; Fairfield Lumber & Supply Co. v. Herman, 139 Conn. 141, 144, 90 A.2d 884. The allegations of the complaint must be given the construction most favorable to the plaintiffs; Brown v. Cato, supra; and every presumption must be indulged which favors the jurisdiction of the court. Fairfield Lumber & Supply Co. v. Herman, supra; Port Chester Electrical Construction Corporation v. Industrial Electrical Supply Co., 139 Conn. 16, 17, 89 A.2d 377.

The plaintiffs' assignments of error amount, essentially, to three propositions--first, that the court erred in granting the motion on the ground that the issues are indefinite, moot, abstract and prematurely raised; second, that the objecting defendants are not necessary parties upon whom personal service was required to be made, so long as they had reasonable notice of the action; and, third, that the allegations of the complaint and other matters of record disclose that the action is in rem or quasi in rem, thereby permitting substituted service.

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