Burnham v. Burnham

• Citation: 126 A. 704,101 Conn. 529
• Court: Supreme Court of Connecticut
• Decision Date: 01 December 1924
• Parties: BURNHAM v. BURNHAM ET AL.

126 A. 704

101 Conn. 529

BURNHAM v. BURNHAM ET AL.

Supreme Court of Errors of Connecticut.

December 1, 1924

Case Reserved from Superior Court, Hartford County; George E Hinman, Judge.

Suit by Raymond H. Burnham against Mary H. Burnham and others to construe the will of John H. Burnham, deceased. Reserved by superior court on stipulated statement of facts for advice of Supreme Court of Errors. Questions answered.

John H Burnham died on April 6, 1915, seized and possessed of real and personal property in value about $25,000. The clauses of his will upon which the advice of this court is asked are the following:

" Second. I give and bequeath to my beloved wife, Mary H. Burnham, all such interest in my estate as she would take under and by virtue of the statute if this will were not executed."

" Seventh. In case of the death of either or both of my two sons, George Forbes Burnham and Raymond Henry Burnham, without leaving any issue, it is then my will that the share of said decedent or decedents be equally divided between my two daughters, Florence Genevra Prouty and Eva Elizabeth Jones, in fee simple absolute forever.

Eighth. All the rest, residue and remainder of my estate, including the household furniture, New Chickering piano, and all silverware, I give, bequeath and devise to my two sons George Forbes and Raymond Henry Burnham; and in case of the death of either or both of them without leaving any issue then said residue and remainder is to go equally to my two daughters, Florence Genevra Prouty and Eva Elizabeth Jones, according to the terms and provisions of paragraph six of this my last will and testament.

Ninth. I hereby nominate and appoint my beloved wife, Mary H. Burnham, executrix of this my last will and testament, with power on her part, if her necessities so require, to encroach upon the principal of my estate to such an extent as to make her comfortable. It is my further will that my estate shall be so managed by said executrix that no portion thereof shall come under the control, directly or indirectly, of Charles F. Olin, husband of my daughter, Annie May. And it is also my will that my said wife shall serve as executrix without any bond being required of her for the execution of her trust."

After the death of John H. Burnham, the will was duly admitted to probate on April 21, 1915, and the widow of the deceased, Mary H. Burnham, duly qualified as executrix, and proceeded with the settlement of the estate. John H. Burnham and Mary H. Burnham were married prior to April 20, 1877, and the widow, Mary H. Burnham, and five adult children survived him, and are now living and all were named as beneficiaries in the will. The final account of the executrix has been filed and accepted in the probate court, and the estate fully settled, except that the distribution of the estate, of which there remains a considerable amount of both real and personal property, has not been made.

The questions which are determinative of all the questions upon which advice is asked are the following: First. Whether the devise of real estate to the two sons of the deceased, as provided in the third section of said will, passed full title to such real estate to said sons at the death of the testator (subject to the widow's statutory rights), or whether title to said real estate in said sons is limited by the provisions of the seventh section of said will? Second. Whether the daughters of the deceased testator, Florence Genevra Prouty and Eva Elizabeth Jones, have any interest or property in said estate under the seventh and eighth section of said will? Fourth. Whether under the ninth section of said will, the widow of the testator, Mary H. Burnham, has power or authority to receive, appropriate or expend any portion of the principal of said estate for her own personal use or support? Fifth. Whether the provisions of the ninth section of said will apply to the period of settlement only, or during the widow's life?

Herbert O. Bowers, of Manchester, for plaintiff.

Henry H. Hunt, of Hartford, for defendants.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and KELLOGG, JJ.

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

The third clause devises all of the testator's real estate to his two sons, George F. and Raymond H. Burnham. The seventh clause provides: In case of the death of either or both of said two sons, without leaving...