Bridgeport Trust Co. v. Fowler

• Decision Date: 03 April 1925
• Citation: 102 Conn. 318,128 A. 719
• Court: Connecticut Supreme Court
• Parties: BRIDGEPORT TRUST CO. v. FOWLER ET AL.

128 A. 719

102 Conn. 318

BRIDGEPORT TRUST CO. v. FOWLER ET AL.

Supreme Court of Errors of Connecticut.

April 3, 1925

Case Reserved from Superior Court, Fairfield County; Christopher L. Avery, Judge.

Suit by the Bridgeport Trust Company, executor and trustee under the will of Susan Washburne Bishop, against Marie W. Fowler and others, for advice, order, and direction with reference to certain questions arising in settlement of the estate. Brought to and reserved by superior court on an agreed statement of facts for advice of Supreme Court of Errors. Judgment advised.

From the record the following facts appear:

Susan Washburne Bishop died, at Bridgeport, on September 27, 1923 leaving a will and codicil. She left surviving her a daughter, Natala Bishop Reyburn, and a son, William D Bishop. By the provisions of the will and codicil, the testatrix, after making certain bequests, left the residue of her estate to the plaintiff in trust.

The legacies and devises bequeathed and devised up to and including that made in the tenth article thereof, have been paid and satisfied, and no question arises in regard to them.

By article 11, there was bequeathed to the plaintiff in trust the sum of $6,000, with the direction that such bequest should be paid by any six $1,000 5 per cent. bonds, which the plaintiff might choose, from the estate of the testatrix. The said bequest was in trust, to pay the net income to Marie W Fowler, a sister of the testatrix, during her life, and upon her death to pay the income to a niece of the testatrix Sally A. W. Fowler.

By article 12, a bequest was made to the Fidelity Trust Company of Philadelphia of $4,000, in trust, to use the net income for the care of the family homestead of the testatrix in Maine.

By article 13, the testatrix bequeathed to each child of her daughter, who might be living at the time of her death, $15,000, with the provision that if any grandchild, entitled to this bequest, had not arrived at the age of 25 years, such grandchild's bequest was to be held in trust, by the plaintiff, to expend the income and such part of the principal, as the trustee should deem proper, for the education of such grandchild and to pay over the unexpended portion thereof to such grandchild, when she or he arrived at the age of 25 years. Article 13 also provided that all the gifts made therein should vest at the death of the testatrix.

The codicil bequeathed to the plaintiff, in trust, $6,000, to hold the same and pay the net income thereof quarterly to the son of the testatrix, during his life, and provided, that upon the death of the son, the principal should be paid to a granddaughter, Susan Reyburn.

The residue of the estate was then given to the plaintiff in trust, one-half to be held for her daughter, the daughter to receive the net income thereof, in quarterly payments during her life. The remainder of said half, of which the daughter was made the life beneficiary, was given to the lawful issue of the daughter, who might survive her. In the event that the daughter of the testatrix left no issue surviving, then the income was given to Marie W. Fowler, a sister of the decedent, during her life, and on the death of her sister the remainder to a niece and two nephews, Sally W. Fowler, Elihu Fowler, and John Fowler. The remaining one-half of said residue was devised to the plaintiff in trust, to hold the same and pay the net income thereof, in quarterly payments, to the son of the testatrix, during his life. The remainder of the second half of the residue was devised to the lawful issue of the son of the testatrix, who might survive him. Under the terms of the will, the remainder of the residue was not to be paid to the issue of the daughter or son, until such issue reached the age of 30 years. The will further provided, that if the son died leaving no issue, then the remainder of the second half of the residue was to be divided as follows: One-quarter among certain charitable institutions in the city of Bridgeport, defendants in this action, and the remaining three-quarters to the lawful issue of the testatrix's daughter.

The estate of the testatrix, at the time of her death, consisted of real estate and personal property, as appears by the inventory, Exhibit C, of the value of $603,186.75. The appraised value of the personal property was $281,089.04. The total of the ante mortem claims and estimated taxes and expenses in the settlement of said estate amounts to $73,395.05. The gifts and bequests made by the testatrix, apart from the residuary devise and bequest, amounted to $67,845.50.

The principal real estate owned by the testatrix, at the time of her death, consisted of an undivided one-half of business property in Bridgeport, known as the Bishop Block and Arcade. The undivided one-half of the real estate was subject to a mortgage of $80,000, which mortgage was placed thereon by the plaintiff, as executor, upon order of the probate court, since the death of the testatrix. The mortgage was placed thereon to borrow money to pay a prior mortgage incumbrance of the same amount.

Under the statutes of Connecticut, all property, taxable in the city of Bridgeport, must be listed, each year, on or before October 1st, in the name of the person owning the same on the preceding September 1st. The taxable property of the decedent, in the city of Bridgeport, owned by her on September, 1, 1923, was listed for taxation in September, 1923. Taxes levied in Bridgeport in February, on the lists, filed during the preceding September, and taxes on the list of 1923 were levied in February, 1924. The taxes levied against the property of the decedent, on the list of 1923, amounted to $11,270.38, the taxes on the real estate being $10,733.48.

During the administration of the estate, the income earned by the estate, up to October 1, 1924, amounted to $43,848.26. There was no separation of the trust funds until a year after the death of the testatrix, and during that period all of the personal estate was managed as an entirety.

The probate court for the district of Bridgeport limited a period for the presentation of claims against the estate and during that period neither Marie B. Charlier nor Lorenzo Semple, trustee, presented a claim against the estate. To provide by purchase, an annuity payable $1,000 at the end of every three months, during the life of a woman, 53 years old, would cost $56,850. The gains on the sales of personal property, during the administration of the estate, were $4,900.

In 1911, for a valuable consideration, the testatrix, for herself, her heirs, and executors, entered into an agreement with Marie B. Charlier, a pay the latter $4,000 per annum, in equal quarterly installments of $1,000 each, during the life of Marie B. Charlier. As part of the agreement, the testatrix executed a bond in the sum of $105,000, conditioned on the faithful performance of the agreement. To secure the bond and agreement, the testatrix mortgaged to the defendant Lorenzo Semple, trustee, the undivided one-half interest in the real estate known as the Bishop Block and Arcade. At the time of the death of the testatrix, Marie B. Charlier was 53 years of age.

In the agreement with Marie B. Charlier, the following provisions, among others, appeared:

First. Should any default be made in the payment of any installment of said annuity on any day on which the same is made payable as above provided, and should such installment remain unpaid and in arrears for the space of 15 days then and from thenceforth, that is to say, after the lapse or expiration of such period of 15 days, so much of said principal sum of $105,000 shall be due and payable as will suffice to pay all arrears of said annuity, all expenses incurred by the obligee in consequence of such default and the sum of $100,000 anything herein or in the mortgage securing said obligation and this agreement to the contrary notwithstanding; said arrears and expenses shall be paid to the obligee; and said sum of $100,000 shall be paid to the trustee or his successors, who shall take and receive the same in trust nevertheless to invest and reinvest said sum of $100,000 from time to time during the life of said obligee in such securities as under the laws of the state of New York are legal investments for trustees, and out of the income derived therefrom to pay the expenses of administering such trust, including the commissions on income allowed by the laws of the state of New York to trustees, and said annuity of $4,000 to said obligee in quarterly installments as aforesaid, rendering the overplus, if any, to the said obligor, her executors, administrators, and assigns; and upon the death of the said obligee to pay and turn over to the obligor, her executors, administrators, and assigns the...