Clifford v. Cronin

• Decision Date: 03 June 1922
• Citation: 97 Conn. 434,117 A. 489
• Court: Connecticut Supreme Court
• Parties: CLIFFORD v. CRONIN et al.

117 A. 489

97 Conn. 434

CLIFFORD v. CRONIN et al.

Supreme Court of Errors of Connecticut.

June 3, 1922

Case Reserved from Superior Court, New Haven County; William M Maltbie, Judge.

Action by J. A. Clifford, trustee, against William H. Cronin and others, to determine the construction of the will of Daniel E. Cronin, deceased. Case reserved by the superior court for the advice of the Supreme Court of Errors. Superior court advised as to construction of the will.

Daniel E. Cronin a resident of Waterbury, died January 18, 1917 possessed of a considerable estate, both real and personal. He made a will dated November 10, 1916, which was duly probated after his decease. By the will his wife, Margaret E Cronin, was named as executrix and trustee of the will and estate. She resigned as said executrix and trustee, and thereafter one Jackson was appointed administrator and trustee, and later after Jackson's resignation, the plaintiff, J. A. Clifford, was appointed administrator and trustee.

The will contained the following provisions:

" Article First. I give to my wife, Margaret E. Cronin of said Waterbury, the use for life of all my property, both real and personal, and further devise and bequeath to her the right to consume and use up any portion of the same, including thus the right to sell and convey any real estate in which I have interests, provided and upon the condition that she shall make and annually give to the judge of probate in and for the district of Waterbury, a written statement that she thus, in her own opinion has need of the money so to be used up, or the property so to be disposed of for the purposes of obtaining funds for such use, the same to be to her and her heirs forever.

" Article Second. In the event that upon the decease of my said wife any portion of my property shall remain not disposed of and consumed as provided in article first, I direct that the same shall be divided between my brothers and sisters in equal parts, the same to be to them and their heirs forever."

At the death of the testator and his wife, one brother and three sisters of the testator survived, namely, James Cronin, Lena C. Hamilton, Elizabeth C. Henri and Mary Cronin. Before the execution of the will in 1916, another brother, William Cronin, died on June 25, 1914. William Cronin left six children surviving him, who also survived the testator and his wife. Margaret Cronin, the wife of the testator, died on June 8, 1920.

" The questions upon which the advice of the Supreme Court of Errors is desired are the following:

" (a) Who are the brothers and sisters described and referred to in article 2 of the said will?

" (b) Was the deceased, William Cronin, to be included among the brothers and sisters described in article 2 of the said will.

" (c) Are the children of the deceased, William Cronin, entitled to share in the said estate?

" (d) To whom shall the trustee, the plaintiff, convey and distribute the balance remaining in his hands, as such trustee?

" All of which appears in paragraph 16 of the plaintiff's complaint.

" That the relief desired is as follows: An adjudication as to the several matters in respect to which said questions and doubts have arisen, and a decree settling the construction of said will, and directing the plaintiff in what manner he shall carry its trusts into execution, and to whom he shall make distribution of said estate and said trust fund, so as to enable him to execute said trusts properly and with safety to himself, as appears in the first paragraph of the plaintiff's claims."

Frank P. McEvoy, of Waterbury, for plaintiff.

Francis P. Guilfoile, of Waterbury, for defendants James E. Cronin and others.

James E. Russell and James E. McKnight, both of Waterbury, for defendants William H. Cronin and others.

William E. Egan, of Hartford, for defendant Elizabeth Cronin Henri.

CURTIS, J.

Under article first of the will, the wife of the testator received a life estate in all of the testator's property, with power to use any portion for her personal support. Bishop v. Groton Savings Bank, 96 Conn. 330, 114 A. 88. At her death whatever remained of the estate undisposed of for her support passed under article second of the will.

The matter in controversy is whether under General Statutes, § 4945, the children of William Cronin, deceased, take the portion of the estate that William Cronin would have received if he had survived the testator and his widow. Under article second of the will, the testator gives the property of the estate not used by the widow during her life for her support to his brothers and sisters. It is urged by the testator's surviving brother and sisters that since this is a gift to a class, the statute (section 4945) has no application, and that the children of the deceased brother, William, do not under any circumstances stand in his place and take the share that he would have taken had he survived the testator. The claim of the surviving brother and sisters of the testator is stated as follows:

" If *** a legacy is given to two or more as a class, such class is not ascertained until the testator's death and hence those only who survive the testator take the entire gift to be divided among them. That there is no question of lapse, nor of the application of section 4945, *** for here the class is in existence ready to take at the testator's death, though it may be reduced in numbers from the date of the execution of the will."

Section 4945 reads as follows:

" When a devisee or legatee, being a child, grandchild, brother or sister of the testator, shall die before him, and no provision is made for such contingency, the issue of such devisee or legatee shall take the estate so devised or bequeathed."

When there is a gift to...