Fritsche v. Fritsche

• Decision Date: 05 December 1902
• Citation: 53 A. 585,75 Conn. 285
• Court: Connecticut Supreme Court
• Parties: FRITSCHE v. FRITSCHE.

53 A. 585

75 Conn. 285

FRITSCHE

v. FRITSCHE.

Supreme Court of Errors of Connecticut.

Dec. 5, 1902.

Appeal from court of common pleas, Hartford county; John Coats, Judge.

Action by Hermann K. A. Fritsche against Margarethe Fritsche, executrix of Johann Ludwig Carl Fritsche. From a Judgment in favor of defendant, plaintiff appeals. Error.

Johann Ludwig Carl Fritsche, dying, left a will, which was duly probated by his wife, the defendant herein, who was named as executrix, and who duly qualified as such, and settled the estate in due form. The second clause of the will, which had thereinbefore provided for the payment of debts and funeral expenses, was as follows: "I give, devise, and bequeath to my wife, Margarethe Fritsche, all my property, of every description, both real and personal, of whatsoever the same may consist or wheresoever it may be situate; and it is my wish that the remainder thereof, if any there be after her death, shall be divided equally between Franklin Seymour Reed, Emma Mathilde Schmidt (nee Reed), Louis Edward Reed, Flora Amanda Mann (nee Reed), Nettie Reed (daughter of Robert Reed, deceased), Herman Karl August Fritsche, and Walter Fritz Hans Fritsche." Mrs. Fritsche was named as executrix, without bonds. Subsequently Fritsche made a codicil, which, aside from its formal parts, was as follows: "Whereas, by my last will and testament, dated the eighteenth day of May, eighteen hundred and ninety-one, I gave to Nettie Reed, daughter of Robert Reed, deceased, one-seventh of the remainder, if any there be, of my property after the death of my wife Margarethe Fritsche, I do hereby, by this present writing, which I declare to be a codicil to my said will, revoke the said legacy, and give to the said Nettie Reed in lieu thereof one hundred dollars. In the event of the death of my said wife Margarethe Fritsche, named as executrix in said will, I appoint Joseph Buths, of Hartford, executor in her stead of said will and of this codicil. And I hereby ratify and confirm my aforesaid will in all respects, except so far as changed or altered by this codicil." Later still, Fritsche made another codicil, revoking the gift in the will to the plaintiff and another, and giving them in lieu thereof $300 each, using for this purpose the precise language of the first codicil. The complaint alleges the making of the will and codicils, which are annexed thereto as exhibits, the death of the testator, the defendant's qualification as executrix, her settlement of the estate, the acceptance of her final account, the existence in her hands thereafter of sufficient assets to pay all legacies, the right of the plaintiff to receive $300 by virtue of the last codicil, and the defendant's neglect and refusal to pay the same to him, and prays judgment. To this complaint the defendant demurred upon the ground "that the said Johann L. C. Fritsche by said will gave all his...