Duffield v. Pike

• Decision Date: 09 March 1899
• Citation: 71 Conn. 521,42 A. 641
• Court: Connecticut Supreme Court
• Parties: DUFFIELD v. PIKE et al.

42 A. 641

71 Conn. 521

DUFFIELD

v. PIKE et al.

Supreme Court of Errors of Connecticut.

March 9, 1899.

Case reserved from superior court, Middlesex county; Silas A. Robinson, Judge.

Action by John J. Duffield against Robert G. Pike and others to construe the will of Ellen M. Pike. Case reserved, and decree advised.

The will was made in 1889. It first gave $2,100 in pecuniary legacies, and a few small specific legacies. It then confirmed agreements which the testatrix had formerly made, upon a valuable consideration, whereby, during her husband's life, the income from 300 shares of stock in the Brainerd Quarry Company was to be paid to him, and that from 150 shares to her three children by a previous marriage. It then devised to her husband the use of her homestead in Middletown for two years, and to the same children the use of a house in Clinton for the same period, next after which clause came the following: "Eighth. Subject to the uses contained in the preceding clause, it is my will, and I direct my executor hereinafter named to sell all my real estate situated in the towns of Middletown and Clinton, aforesaid, as fast as the same can be profitably sold, and from the proceeds of such sales to pay off all the tax, mortgage, and other incumbrances resting upon said real estate, and to apply the balance of the proceeds, if any remain, to the payment of the debts, liens, taxes, mortgages, or incumbrances of any kind that may rest upon my stock in the Brainerd Quarry Company, of Portland, Connecticut, or upon my quarry lands in said Portland, if any such debts, liens, taxes, mortgages, or incumbrances shall exist; and, if any part of said proceeds shall still remain, or if said proceeds are not needed for said purpose, then I direct my executor hereinafter named to pay over said proceeds, or any part thereof remaining, to my nine children aforesaid, in equal shares or portions; and, in order that the provisions of this clause of my will may be carried out, my executor hereinafter named is hereby authorized and empowered to sell the said real estate upon such terms and conditions and in such lots and parcels as he may, in his discretion, deem for the best interest of my estate; and I hereby authorize and empower my executor hereafter named to make and execute any deed or deeds proper or necessary to convey said real estate, or any part or parts thereof, to the person or persons who may purchase the same, and to receive and receipt for the proceeds of such sale or sales." The ninth clause, after expressing her desire that all her stock in the Brainerd Quarry Company and a quarry lot in Portland should ultimately go to her children free from all incumbrances, left the same in trust to apply the income (subject to the rights under said agreements as to 450 shares of the stock) to satisfy all such incumbrances, and, when these were satisfied, to pay it to her nine children during her husband's life. A power was given to the trustee to sell the quarry lot should he, in his discretion, deem it for the best interests of her estate, and pay over the proceeds, after first satisfying therefrom all incumbrances on said lot and on the stock in the Brainerd Quarry Company, to said nine children. Subject to the trust, she left said lot and stock to said children. There was then a general residuary bequest and devise to said nine children. By a codicil, made in 1891, each of her 13 grandchildren was given $1,000, to be paid to each "on his or her reaching twenty-one years of age"; and the same sum was left absolutely to any grandchild that might be thereafter born, who should survive her, with a provision against lapses in favor of descendants of grandchildren. The agreement with her husband, referred to in the will, was made in 1882, and, besides securing to him the life use of 300 shares in the Brainerd Quarry Company, contained this provision: "And it is further understood and agreed that the said Ellen M. Pike and the said Robert G. Pike shall make their respective wills in such way that all the said property of one thousand shares, and all their other property, shall ultimately go to and be divided equally between all the children of said Ellen M. Pike, either directly or in trust for their benefit. But this agreement shall be deemed open to alteration upon the agreement of said Ellen M. Pike and Robert G. Pike." Said agreement was never altered. Mrs. Pike died in 1891, when her will was proved, and the usual order made, limiting the time for the presentation of claims to six months. Her estate amounted to over $200,000. It consisted of 1,700 shares of the Brainerd Quarry Company (subject to life estates as to 450 shares), valued at $170,000; other personal property, amounting to about $5,700; the quarry lot, valued at $12,500; and the Middletown homestead and Clinton house, valued, together, at $21,500. The executor paid about $5,300 in discharge of unsecured claims and funeral expenses, and over $1,100 in partial liquidation of the expenses of administration. He also paid all other claims against the estate, including over $32,000 secured upon the quarry lot and the shares in the Brainerd Quarry Company, and considerable sums for taxes, surveying, repairs, etc. Except about $400, received from the earnings of vessels, all the funds which he collected were from dividends on the stock in the Brainerd Quarry Company, and rentals, and sales of the real estate. Evidence was received, subject to exception, and a conditional finding made thereon, upon which some of the legatees claimed priority of payment, as appears more fully in the opinion. The main questions as to which advice was asked were the following: First. Whether there is any fund belonging to the estate of the testatrix from which the legacies given in the second clause of said will and in the codicil may be paid, or whether said legacies have wholly abated by reason of a failure of estate out of which they may be paid. Second. If said legacies, or any of them, are adjudged to be payable from the estate, from what fund, or portion of the estate, may they be lawfully paid? Third. If said legacies, or any of them, are adjudged to be payable from the estate, whether they bear interest or not, and, if so, from what date?

Francis H. Parker, for plaintiff.

Eldon B. Birdsey, for defendants Robert G. Pike, Jr., and others.

John H. White and Clarence E. Bacon, for defendants Elizabeth M. Goodwin and others.

Charles F. Choate, Jr., for defendants Ellen M. Whitman and others.

John L. Hall, for defendant Silas B. Duffield.

BALDWIN, J. (after stating the facts). It is to be presumed that the testatrix intended every part of her will to take effect. Several years before its execution she had entered into an agreement with her husband, made upon a valuable consideration, by which she undertook to make her will in such a way that 1,000 shares of stock in the Brainerd Quarry Company, and all her other property, should ultimately go to her nine children in equal shares. The will which she in fact made is obviously inconsistent with the obligation which she thus assumed. This inconsistency, however, cannot affect its construction, whatever rights it might give the husband to present a claim against her estate. The personal estate, not specifically bequeathed, was all needed for the payment of debts and charges. The general legacies must, therefore, fail, in whole or part, unless they can be satisfied out of real estate not specifically devised. The remainder in the Middletown homestead and Clinton house falls within that description. By the terms of the will it became the property of the residuary devisees, at law, under the...