Dolbeare v. Dolbeare

• Decision Date: 05 May 1938
• Citation: 124 Conn. 286,199 A. 555
• Court: Connecticut Supreme Court
• Parties: DOLBEARE v. COLBEARE et al.

199 A. 555

124 Conn. 286

DOLBEARE v. COLBEARE et al.

Supreme Court of Errors of Connecticut.

May 5, 1938

Appeal from Superior Court, Middlesex County; Edward J. Quinlan Judge.

Proceeding in the matter of the estate of William F. Burrows, by Guy B Dolbeare against Guy B. Dolbeare, executor, and others. From an order of the court of probate for the District of Middletown ascertaining the distributees of the estate, an appeal was taken to the superior court, and tried to the court. Judgment for plaintiff, and defendants appeal.

Error and case remanded with directions to dismiss the appeal.

Don Cambria, of Middletown, for appellants Virginia Frances et al.

Charles W. Atwater, of New York City, for appellants Louis and Mary Dolbeare.

Hibbard R. Norman and Richard L. Norman, both of Norwich, for appellee.

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

MALTBIE, Chief Justice.

This case came to the Superior Court as an appeal from an order of distribution made in the settlement of the estate of William F. Burrows by the Court of Probate for the district of Middletown. In the Superior Court the appellant, Guy B. Dolbeare, filed reasons of appeal, to which were annexed a copy of the will of the testator, and which contained various allegations as to the parties involved and their relationship to the testator's sister, through whom they claimed to share in the estate. The appellees in the Superior Court filed an answer which either stated lack of knowledge of or denied all the material allegations of the reasons of appeal. The trial court heard the case, filed a memorandum of decision and caused judgment to enter finding the issues for the appellant. No finding was made. We are therefore limited in our inquiry to such material facts as appear upon the record to have been put in issue by the reasons of appeal. Practice Book 1934, p. 66, § 189; In re Williamson's Estate, 123 Conn. 424, 426, 196 A. 770. In this case, defective as is the procedure adopted, sufficient facts for determination of the appeal can be extracted from the record.

In his will the testator, after providing several legacies, gave the residue of his estate to his wife for the term of her life; he made certain gifts to be paid out of the residue at her death; and the dispositive portion of the will then concluded: ‘ The balance of the said residuum, I give, devise and bequeath to my brother William H. Burrows and my sister, Mary G. Dolbeare, in equal shares if they survive my said wife; and in the event that only one of these survive her, then that survivor shall take the whole; and in the event that neither be living at the death of my said wife, then the issue, then living, of my said sister, shall take the share to which their mother would have been entitled had she been living.’

The testator's wife has now deceased. Neither Mary G. Dolbeare nor William H. Burrows survived her, and the substitutionary gift to the ‘ issue’ of Mary becomes effective. When the testator's wife died, one son of Mary, Guy B. Dolbeare, was alive and had a living son; two other sons had then deceased, but there were living children of each. The Court of Probate decreed that the balance of the residue should be distributed to Mary's son, Guy B. Dolbeare, and to the children of her deceased sons. Guy B. Dolbeare appealed to the Superior Court and that court, sustaining the appeal, found that the whole balance should be distributed to him. The ultimate issue in the case is whether by the provision in the will that, should Mary and her brother predecease the testator's wife, her ‘ issue’ then living ‘ shall take the share to which their mother would have been entitled had she been living,’ the testator intended to make the gift only to the children of Mary, or intended to include the issue of any child of Mary who had deceased.

The word ‘ issue’ when used as a word of purchase and unaffected by any circumstances showing a different intent means descendants of every degree. Bartlett v. Sears, 81 Conn. 34, 39, 70 A. 33; Stamford Trust Co. v. Lockwood, 98 Conn. 337, 344, 119 A. 218; Mooney v. Tolles, 111 Conn. 1, 6, 149 A. 515, 70 A.L.R. 608. The trial court based its judgment, as appears from the memorandum of decision, largely upon a rule of interpretation referred to in Wallace v. Wallace, 103 Conn. 122, 133, 130 A. 116, to the effect that the word ‘ issue’ when used in correlation with the word parent or the like will be taken to mean children. That rule had its origin in two English cases, Sibley v. Perry, 7 Ves.Jr. 522, 32 English Reprint, 211, and Pruen v. Osborne, 11 Sim. 132, 59 English Reprint, 824. It has been followed to a considerable extent in this country. Note, 2 A.L.R. 942. It has, however, been strongly criticized both here and in England and in some cases where it has been followed courts have done so reluctantly, merely upon the basis of precedent. See cases referred to, 2 A.L.R. 946; 5 A.L.R. 195. As a definite rule of construction it now has arrayed against it such outstanding jurists as Justices Holmes and Cardozo; Dexter v. Inches, 147 Mass. 324, 325, 17 N.E. 551; Matter of Farmers' Loan & Trust Co., 213 N.Y. 168, 172,107 N.E. 340, 2 A.L.R. 910; although in Massachusetts it had support in an earlier decision by Gray, C.J. King v. Savage, 121 Mass. 303, 306. It is not too much to say that there is a growing tendency to regard the fact that the word ‘ issue’ is used in correlation with the word ‘ parent’ and the like as merely a circumstance to be considered, and not to apply a definite rule of interpretation which in such a case would give it the meaning of children. Union Safe Deposit & Trust Co. v. Dudley, 104 Me. 297, 307, 72 A. 166; In re Frist's Estate, 18 Del.Ch. 409, 161 A. 918.

In our State the case of Austin v. Bristol, 40 Conn. 120 16 Am.Rep. 23, is sometimes referred to as adopting the rule of the English cases, but there was in that case no occasion to apply it. In Mitchell v. Mitchell, 73 Conn. 303, 308, 47 A. 325, 326, we had before us a testamentary provision for a gift to a certain person and his children but if one or more of the children had died ‘ leaving issue of his or her body, said issue shall receive the same portion that his or her parent would be entitled to if living.’ We construed the word issue as meaning children, merely stating, ‘ It includes only such issue as can take from a parent; i. e. children; ’ but no authority is cited and no definite rule of interpretation adopted. In Wallace v. Wallace, supra, we said (page 133, 130 A. page 119): ‘ Where the term ‘ issue’ is used in correlation with parent, we have held, in construing other wills, that children were meant by issue, and such has been the general holding elsewhere,'...