Chase Nat. Bank of City of New York v. Schleussner

• Decision Date: 08 August 1933
• Court: Connecticut Supreme Court
• Parties: CHASE NAT. BANK OF CITY OF NEW YORK et al. v. SCHLEUSSNER et al.

167 A. 808

117 Conn. 370

CHASE NAT. BANK OF CITY OF NEW YORK et al. v. SCHLEUSSNER et al.

Supreme Court of Errors of Connecticut.

August 8, 1933

Case reserved from Superior Court, Fairfield County; Arthur F Ells, Judge.

Suit by the Chase National Bank of the City of New York and others executors of the estate of Philip Schleussner, deceased against Matilda H. Schleussner and others for the construction of a will, brought to the superior court and reserved for the advice of Supreme Court of Errors.

Questions answered.

John D. Fearbake, of New Cannan, for plaintiff.

Charles D. Lockwood, Mortimer L. Doolittle, and Walter N. Maguire, all of Stamford, for defendants Matilda H. Schleussner et al.

Norris E. Pierson and Dana S. Hawthorne, both of Stamford, for defendants Otto W. Schleussner et al.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

MALTBIE, Chief Justice.

Philip Schleussner died in Stamford March 21, 1931, leaving a will dated November 6, 1929. He was survived by his father and mother, his widow, a daughter, a son, who was a minor, two brothers and a sister, all of whom are alive. In his will he made the following provisions: He gave his personal belongings to his wife and children, and he also gave to them a collection of porcelain and one of books, but with certain provisions for their disposition if neither child evinced an interest in them. He provided for the sale of his real estate in Stamford by the executors and the addition of the proceeds to the corpus of his estate. Article sixth of the will is as follows: " Article Sixth: In the event that my net estate, as hereinafter defined and determined, be equal to or exceed the sum of One Million ($1,000,000) dollars, then and in that event I direct my Executors, hereinafter named, to pay one per cent (1%) of the amount of my said net estate to each of the three persons hereinafter named, as soon as may be after my death. I direct my Executors for their guidance in determining the amount of my net estate to base said legacies upon the amount remaining in my estate after paying, or making due provision for the payment of, all funeral and administration expenses, all other legal claims and charges against my estate by any creditors, if such there be, all Personal and Real Estate Taxes, all State Transfer or Succession Taxes, Income, and Federal Estate Taxes, and all other charges, of every nature and kind whatsoever, whether the same be Government charges or other legal claims against my estate incurred prior to or during the administration of same." He named as the three persons referred to in this article his two brothers and his sister. He gave the residue of his estate to the plaintiff bank as trustee to hold and invest, to divide into four equal shares, to pay from the proceeds an annuity of $3,000 to his father and mother, and to pay the remaining income to his wife and children for their lives, with a disposition of the principal at their death. He gave the trustee various powers, and provided that, if it deemed it advisable to divide the estate and distribute it or any part of it to the beneficiaries, such valuation or appraisal of the assets as the trustee should make in distributing it, if in kind, should be conclusive and final. He named the plaintiff bank and his wife as executor and executrix of the will.

The appraisal of the estate as of the time of his death amounted to $1,656,501.49. The expense of settling the estate and other allowable charges paid by the executors amount to $196,062.92, and there are certain unpaid obligations of the decedent and his estate which the executors estimate at a maximum amount of $79,360.23. There was a gross income during the settlement of the estate up to November 1, 1932, amounting to $58,641.62. Including this income, and not deducting the estimated amount of unpaid obligations accrued or to accrue, the value of the assets in the hands of the executors amounted on November 1, 1932, to $829,133.33.

The first question arising under the stipulation concerns the method of determining the " net estate" mentioned in the sixth article, upon the amount of which depends the right of the testator's brothers and sister to receive the legacies therein provided. They contend that the " net estate" should be determined by deducting from the appraised value of the estate at the decedent's death the charges against it mentioned in that article. We are not able to accept that contention. The primary purpose of the testator was to provide an income for his wife and children so long as they lived by means of the trust fund which he established. The legacies to his brothers and sister were entirely subordinated to that purpose, and were only to be paid in the event that the testator's " net estate" as defined in the will amounted to at least $1,000,000. The testator made his will at a time when values were fluctuating rapidly. The amount which his widow and children would receive would depend, not upon the value of the estate at the time of his death, but upon the amount which ultimately went into the trust fund. It is far more probable that the testator was thinking of that amount than that he intended the " net estate" to be based upon the value of his property at his death less the allowable deductions, a " net estate" which might fall far short of producing the income which he evidently desired his widow and children to receive.

That he intended a " net estate" determined as of the time of distribution appears in the very terms of the sixth article. He directs his executors " for their guidance in determining" the " net estate" to base the legacies upon the " amount remaining" in his estate after paying or " making due provision for the payment of" the charges specified. Herein he indicates that this determination is to be made by the executors after the charges have been paid or " due provision" made for them, which could only be done after the administration had proceeded sufficiently far so that the executors might file a final account acceptable to the court of probate as preliminary to a distribution of the estate. The testator would hardly have used the form of expression he did, had he intended that the " net estate" should be determined by deducting from the appraised value of his assets the charges specified; a " net estate" so determined could hardly be " the amount remaining in my estate" after payment or making due provision for the payment of the deductible charges.

It is true that the will makes no provision for a reappraisal of the assets of the estate for the purpose of determining whether the " net estate" is sufficiently large so that the brothers and sister have any legacy and, if they do how much is to be paid them. Section 4894 of the General Statutes provides that, when a testator shall order an estate to be divided among two or more devisees or legatees without appointing any person to divide it, the court may appoint three disinterested persons to make the division. If the testator appoints some person to make that division, the court of probate has no jurisdiction to appoint distributors, unless the person named in the will becomes incapacitated. Strong v. Strong, 8 Conn. 408, 412; Walker v. Upson, 74 Conn. 128, 131, 49 A. 904. The article in question reads: " I direct my Executors for their guidance in determining the amount of my net estate," etc. This provision carries a clear implication that it was the testator's intention that the executors should determine the amount of the net estate at least in the first instance. That he meant to vest them with this power gathers support from other provisions in the will and surrounding circumstances. The bank, named executor, was also the trustee to whom the residue was given. The testator directed it as trustee to divide the trust fund into four equal parts for the administration of the trust, and this would necessarily involve the determination of the value of the assets composing the fund; and he provided that, if...