Burley v. Maguire

• Decision Date: 06 November 1940
• Citation: 127 Conn. 242,16 A.2d 358
• Court: Connecticut Supreme Court
• Parties: BURLEY et al. v. MAGUIRE et al.

16 A.2d 358

127 Conn. 242

BURLEY et al. v. MAGUIRE et al.

Supreme Court of Errors of Connecticut.

November 6, 1940

Case Reserved from Superior Court, Fairfield County; John Rufus Booth, Judge.

Action for the construction of a will by Edward Keith Burley and others against Walter N. Maguire, executor and trustee, and others. The case was reserved by the Superior Court for the advice of the Supreme Court of Errors.

Questions answered.

Joseph L. Melvin, of Stamford, for plaintiff.

Thomas J. Ryle and Peter J. Ryan, both of Stamford, for defendants.

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS JJ.

MALTBIE, Chief Justice.

The ultimate issue presented by this reservation concerns the rights of the parties to a fund resulting from a sale of certain pieces of real estate formerly owned by Edith L Burley, now deceased, and included in the provisions of her will. After Mrs. Burley's death the executors of her estate filed a final account which was accepted by the Court of Probate and thereafter Clarence A. Burley, her husband entered into the use and enjoyment of all the property of the deceased remaining after the administration, including various pieces of real estate, although these were not formally distributed to him. He sold some of the real estate and after his death the executors upon his estate sold certain other pieces. The proceeds of the sales by the executors constitute the fund in question. The disputed portions of the will are contained in two paragraphs quoted in the footnote.^[1] The parties before us are Edward Keith Burley, referred to in the will as the testatrix' son but in fact her stepson, and persons who claim under the testatrix' husband, now deceased. They are in agreement that sufficient provisions have been made for the annuity given in the second paragraph to Luch H. Bard. It would seem, however, that the rights to the fund in question in this case should not finally be determined by the judgment of the Superior Court in an action to which she is not a party. Any right she might have would, however, have priority over the rights of all now parties to this action and she has no interest in the subordinate questions presented as to their respective rights under the provisions of the third paragraph of the will. The determination of these questions is necessarily involved in the judgment ultimately to be entered and we have decided to entertain the reservation so far as necessary to answer them.

It is claimed by the defendants that the provisions of the third paragraph of the will gave to the testatrix' husband, Clarence A. Burley, an absolute title to the property, and by the plaintiffs, that Mr. Burley took only a life estate with power to use or dispose of the property for his benefit but that the son had a vested right to any portion of the property which might not be used or disposed of by the husband. It is not possible to read the provisions of the will in question without coming to the conclusion that the latter contention is correct. In the first sentence of the paragraph, the testatrix uses the same language, ‘ give, devise and bequeath,’ with reference to the interest the son should have in the property as she uses at the beginning of the paragraph in making provision for her husband, and these words, taken in their ordinary meaning, have the effect of definitely vesting the property in the son. The expression of the testatrix' intent that her husband should have the right to use, enjoy or dispose of the property would be unnecessary had she meant to give him absolute title to it. The provision at the end of the paragraph that no bond should be required of him ‘ for the safe keeping or delivery to my son’ of any of the property, clearly implies that she regarded her husband as owing a duty to the son to keep so much of it as not needed by him for the son's benefit, so that he may receive it at the husband's death. The only doubt which could be suggested arises out of the word ‘ wish’ in the next to the last sentence. That word no doubt is primarily precatory in its significance; but its use with such a meaning is not invariable and if, from the whole instrument, it can be seen that it expresses the definite will of the testator, it is to be given that effect; Cumming v. Pendleton, 112 Conn. 569, 573, 153 A. 175; and even in the very sentence where the word occurs, the use of the expression that the property ‘ shall descend’ to the son suggests that the provision is more than precatory. When the whole paragraph is read, it is evident that the testatrix intended to give her husband a life use of the property with full power to use or dispose of it for his benefit but to vest in the son the right to so much of it as might remain at her husband's death.

Those succeeding to the husband's estate rest their contention quite largely upon two recognized principales: First, that where a testator makes an absolute gift of property he cannot thereafter create any further interests in or limitations upon it; Mansfield v. Shelton, 67 Conn. 390, 394, 35 A. 271,52 Am.St.Rep. 285; Fanning v. Main, 77 Conn 94, 99, 58 A. 472; Colonial Trust Co. v....