Gilman v. Gilman

• Decision Date: 05 October 1923
• Citation: 122 A. 386,99 Conn. 598
• Court: Connecticut Supreme Court
• Parties: GILMAN ET AL. v. GILMAN ET AL.

122 A. 386

99 Conn. 598

GILMAN ET AL. v. GILMAN ET AL.

Supreme Court of Errors of Connecticut.

October 5, 1923

Case Reserved from Superior Court, New London County; Allyn L Brown, Judge.

Action by Caroline T. Gilman and others, as executors of the estate of Louisa G. Lane, deceased, against Caroline T. Gilman and others. Reserved for advice of the court. Questions answered.

Superior court advised that the executors take the residue absolutely free from any trust.

Louisa G. Lane, a resident of Norwich, there died August 7, 1922 aged 83 years, leaving a will which was proved in the court of probate for the district of Norwich. In the will she created a trust in the sum of $25,000, providing for payment of the net income of the fund to Maria Louisa Lane for life and the division of the principal fund upon her death among three grandchildren of the deceased husband of the testatrix. She also gave pecuniary legacies of $3,000 each to said grandchildren.

The testatrix also made bequests of $1,000 each to eight persons seven of whom were her nephews and nieces, and these seven persons, together with Lawrence Gilman and Joseph Gilman, grandnephews, and sons of a deceased nephew, Arthur C. Gilman, are the defendants in this action.

The will further provides as follows:

" Sixth.--I leave my clothing, laces and jewelry to my niece Caroline T. Gilman, to be distributed by her among my friends.

Seventh.--All the rest, residue and remainder of my property both real and personal, of which I may die possessed or to which I may be entitled at my decease, I give, devise and bequeath to my brother, William C. Gilman, for use during his natural life. All the rest residue and remainder of my property, I give, devise and bequeath to my executors to be distributed at their discretion.

Eighth.--I nominate and appoint my brother, William C. Gilman, my niece, Caroline T. Gilman, and my nephews George H. Gilman and Francis Gilman, or whichever shall qualify and the survivors of them as and for the executors of this my last will and testament, and I direct and request that they be required to give only nominal bonds.

Ninth.--I give to my said executors or executor, and the survivors or survivor of them, the power to sell either at public or private sale, or to lease at their discretion, any portion of my property, real or personal of which I may die possessed."

The plaintiffs, Caroline T. Gilman, George H. Gilman, and Francis Gilman, appointed as executors in the will, have duly qualified as such executors and are now acting. William C. Gilman, the fourth executor named in said will, predeceased the testatrix. The plaintiffs are also defendants in their individual capacity.

The testatrix was the widow of George W. Lane, to whom she was married on or about May 30, 1883, and who died on or about December 30, 1883. No children were ever born to Louisa G. Lane. She had six brothers and sisters of the whole blood, all of whom predeceased her: Edward W. Gilman, Elizabeth G. Thompson, Daniel C. Gilman, William C. Gilman, Maria P. Gilman, and Emily S. Gilman. Edward W. Gilman died in 1900, leaving surviving him two children, Caroline T. and Julia S., and the issue of Arthur C., a deceased child. Arthur C. Gilman died in 1890, leaving two children, Lawrence Gilman and Joseph Gilman. Caroline T. Gilman is now living and unmarried. Julia S. Gilman is now living and is the widow of Eugene S. Bristol. Elizabeth G. Thompson died in 1892, leaving a son, W. Gilman Thompson, as her only descendant. Daniel C. Gilman died in 1908, leaving two daughters, Elisabeth and Alice; the latter is the wife of Everett P. Wheeler. William C. Gilman died on or about March 30, 1922, leaving two sons, George H. Gilman and Francis Gilman, surviving him.

With the exception of the period of approximately seven months during which she was married to George W. Lane, Louisa G. Lane had her home, during the entire period from and after 1863 down to the date of her death, in the house at 380 Washington street, Norwichtown, Conn. This house was owned at the time of her death by Eliza Coit Gilman, mother of Louisa G. Lane, and was by the will of Eliza Coit Gilman devised equally to Maria P. Gilman, Emily S. Gilman, and Louisa G. Lane, all of whom were living at the date of the death of Eliza Coit Gilman. The house was also the home of Maria P. Gilman and Emily S. Gilman after 1863 up to the dates of their respective deaths, and was also occupied by William C. Gilman from approximately 1900 down to the date of his death. This house served as a common meeting ground for the various members of the Gilman family, and family gatherings were held there from time to time. The sisters Maria, Emily, and Louisa were always ready there to extend hospitality to the children and grandchildren of their deceased brothers and sister, and all of the sisters, and particularly Louisa G. Lane, repeatedly expressed the wish that the house should be always maintained and kept open for family gatherings, and well understood that this was impossible without an appropriation for such purpose.

Louisa G. Lane received, as the survivor of a group consisting of herself and Maria P. Gilman and Emily S. Gilman, a large proportion of the property of which she was the owner at the time of her death under the will of her uncle, Joshua Coit. The will of Joshua Coit left the residue of his estate to his nieces Maria P. Gilman, Emily S. Gilman, and Louisa Gilman (the testatrix) " jointly to them and the survivors and survivor of them, and the heirs of the survivor." Joshua Coit also left with his will two certain papers or memoranda, by which he informed his nieces that the income of the sum given them in his will was intended in the first place for their " greater comfort, convenience of hospitality and independence, the principal after your life to go to your brothers and sisters and their families, as you think judicious and provide by will." He further stated to them that the ordinary way to effectuate such an intention was to create a trust wherein trustees are required by law strictly to carry out the provisions made by the donor, and that had he pursued this latter course he would have selected his nieces in preference to all others, but that questions arise in a strict trust which are often embarrassing, and consequently recourse to courts may be necessary, and that such questions could better be solved by his nieces by carrying out in good faith the main object of the bequest. The testatrix knew of the will of Joshua Coit and of the memoranda above referred to, and was acquainted with their terms and phraseology. The testatrix kept the property received by her under the will of Joshua Coit as a separate fund.

The testatrix was upon very friendly terms on November 17, 1919, and at all times prior and subsequent thereto, with all of her relatives, and especially with all of the defendants and their respective families, and for several years prior thereto she had been contributing to the support of her niece, the defendant Caroline T. Gilman, and her nephew, the defendant Francis Gilman. About the year 1915, she caused her nephew, George H. -Gilman, to draw a will according to her instructions, and he sent her from New York to Norwich an original draft and a carbon copy thereof, a copy whereof appears in the record marked Exhibit H. She executed the original draft as her last will and testament, which will she subsequently destroyed. In the year 1919, she sent to George H. Gilman, in New York, the carbon copy, Exhibit H, with instructions to draw another will, making certain specified changes. He made a draft of a will according to said instructions, a copy of which appears in the record marked Exhibit I, and sent it to her. She never executed it, but not long after executed her last will and testament.

The following questions are propounded for the advice of this court:

" (a) Whether or not the executors named in the will of Louisa G. Lane who have qualified are entitled under the seventh article of said will to the residue of said estate absolutely and in fee simple for their own use free of any trust or obligation.

(b) Whether or not said executors hold said residue upon a trust, and if so what is the nature of such trust and who are the beneficiaries thereof.

(c) Whether or not said executors hold said residue impressed with a trust, but a trust which is too vague and indefinite to be enforceable, so that the heirs at law and next of kin are entitled to said residue as intestate estate.

(d) As to who is entitled to said residue, and in what proportions."

The three executors in their personal capacity as defendants and the defendant Elizabeth Gilman claim that the residue disposed of in the seventh article of the will vests absolutely in the executors who qualified free from any trust or obligation, and that the seventh paragraph is not void or inoperative and the residue is not intestate estate. The other defendants claim that the seventh article of the will vests no beneficial interest in the residue; that they do not take the residue absolutely; that said residue is impressed with a trust which is too vague and indefinite to be enforceable; and that the residue should be divided according to the provisions of the statute of distributions.

Further facts appear in the opinion.

Wallace S. Allis, of Norwich, for plaintiffs.

Gardiner Greene, of Norwich, and George H. Gilman, of New York City, for defendants Caroline T. Gilman and others.

J. Dwight Dana and William B. Dana, both of New Haven, for defendants Julia S. Bristol and others.

John P. Huntington, of Norwich, for defendant Elisabeth Gilman.

KEELER, J. (after stating the facts as above).

The seventh article of the will of...