Greene v. King

• Decision Date: 23 February 1926
• Court: Connecticut Supreme Court
• Parties: GREENE v. KING ET AL.

132 A. 411

104 Conn. 97

GREENE v. KING ET AL.

Supreme Court of Errors of Connecticut.

February 23, 1926

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

Suit by Jennie M. Greene against Joseph H. King and others, executors of the will of Harriet T. Kilbourne, deceased, for an injunction, an accounting, and for damages. Demurrer to the answer was filed and cause reserved to the Supreme Court of Errors. Remanded, with advice that demurrer be sustained.

Percy S. Bryant and Morris S. Falk, both of Hartford, for plaintiff.

Hugh M. Alcorn, of Hartford, for defendants.

Argued before WHEELER, C.J., and CURTIS, KEELER, MALTBIE, and HAINES, JJ.

HAINES, J.

The plaintiff is a daughter of Mary J. Ackley, deceased, who was one of the four children of Alfred Kilbourne, deceased, and the wife of Elijah Ackley, to whom she was married in March 1858. Alfred Kilbourne died in 1893 leaving a will which was duly Probated in the court of Probate for the district of East Hartford, by the third article of which he divided and disposed of his estate as follows:

" I do give devise and bequeath to my beloved wife Jerusha W. Kilbourne all my household goods of every description. Also the one half of all my other estate both real and personal to her and her heirs forever.

All the rest residue and remainder of my estate, both real and personal I direct shall be divided into ten shares or parts which I do dispose of in the following way and manner, viz.:

To my daughter Mary J. Ackley, the wife of Elijah Ackley I do give one of those shares or parts, to her and her children if she have any, for her own separate use and benefit, but in the event that she die without leaving children then I do give the same to my other children (viz.) Alfred E. Kilbourne--Harriet T. Kilbourne and Ellen M. Bishop to them and their heirs forever, they to share the same alike.

To my daughter Harriet T. Kilbourne I do give three of those shares, or parts to her and her children if she have any for her own use, but in the event of her death without leaving children I do give one-half of the same to her brother and sisters (viz.) Alfred E. Kilbourne, Mary J. Ackley and Ellen M. Bishop to them and their heirs forever, to share the same alike.

To my daughter Ellen M. Bishop the wife of B. P. Bishop, I do give two of those shares, or parts to her and her children for her own separate use, but in the event that she should die without leaving children, I do give the same to her brother and sisters (viz.) Alfred E. Kilbourne, Mary J. Ackley and Harriet T. Kilbourne, to them and their heirs forever to share the same alike.

To my son Alfred E. Kilbourne I do give four of those shares, or parts for his own use to him and his children, but in the event that he should die without leaving any children, then I do give the same to his three sisters to share the same alike to them and their heirs forever."

There were two codicils, the second of which, dated October 18, 1893, read as follows:

" On the death of my son Alfred E. I give and bequeath two thirds of the amount I have given to him and his children, to such children of his as may survive him to share alike to them and their heirs, and one third thereof to my three daughters to share alike to them and their heirs."

Upon the settlement of the estate, there remained for distribution real and personal property of the value of $79,606.90.

As her share, Harriet T. Kilbourne received certain described personal property of the value of $11,941.03. She died June 12, 1923, unmarried and without children, and left a will naming Joseph H. King and Ellen M. Bishop as executors. The will was duly Probated, and the executors qualified and now have in their custody and control certain personal property which they propose to distribute in accordance with the will of their decedent unless restrained by order of court.

The plaintiff claims by inheritance through her mother, Mary J. Ackley, an interest in the above estate of her aunt, and by this action seeks damages, and also an injunction restraining the defendant executors from disposing of this property as proposed, for an accounting of income and profits therefrom, for the transfer of her share to her or the payment of the value thereof, and such other relief as equity may provide.

It is admitted that Alfred T. Kilbourne was survived by his widow, Jerusha W. Kilbourne, and by his four children named in his will. Of these only Ellen M. Bishop survives. On October 22, 1894, while the widow and the four children were still living, the final account of the executors of his estate, and a final supplemental account, were accepted by the court of Probate, and on December 22, 1894, these five legatees executed and filed a " mutual distribution" of the entire estate, which was likewise approved and accepted by the court of Probate.

This mutual distribution is set up by the defendants in their answer to the complaint, and they contend that it conformed to the terms of the will and gave a sole and separate interest in the several items of property apportioned to each of the five legatees, who executed it. The plaintiff, by demurrer, disputes the validity of the mutual distribution, and this question, by reservation, is presented to this court for its decision.

The demurrer is based upon five principal contentions, which we summarize as follows:

(1) That the " mutual distribution" of this testate estate is an attempted substitute for the will, and so without legal effect.

(2) That Mary J. Ackley, having been married prior to the 20th of April, 1877, and her husband being then living, was incapable of executing the mutual distribution without his concurring signature.

(3) That there was no consideration for the acts of the several signers of the instrument.

(4) That by the terms of the instrument Mary J. Ackley attempted to assign an interest which she did not possess.

(5) That the mutual distribution attempts to make a disposition of the estate which differs from that provided by the will.

In support of the first of the above positions, counsel for the plaintiff in brief and argument seem to make an even broader claim, viz., that there is no legal sanction in any event for a mutual distribution of a testate estate. This claim is unsound. This " mutual distribution" is essentially a contract, the clear purpose being to divide the various items of property in the estate which they were then holding by a common title in certain undivided proportions under the will. It being determined between them what items of property each should take, each sought to release his or her interest in those items which were set to the others, so that thereafter each should have a sole and separate title to the items apportioned to him or her and no further interest in the rest of the property.

Assuming that the document they signed was in proper form for that purpose, the agreement of each to release to the others certain property rights was a valid consideration for the corresponding agreement of each of the others. Rice v. Almy, 32 Conn. 297, 304. Even though such distributions are defective in form, it has been held that the parties to it may be bound by estoppel. Brown v. Wheeler, 17 Conn. 350, 354, 44 Am.Dec. 550.

And an informal distribution may yet be valid. Bidwell v. Beckwith, 85 A. 682, 86 Conn. 462, 471; Hotchkiss' Appeal, 95 A. 26, 89 Conn. 420, 423, 427.

It is familiar law that the will is the source of the beneficiaries' title in the case of testate estates, while in intestate estates the source of title is the statute. Whether the estate be testate or intestate, the legal title to real estate passes to the beneficiaries at once upon the death of the owner, while in the case of personal property the beneficiaries do not have full title or right of possession until distribution which follows the payment of all debts and charges and the acceptance of the administration account by the court of Probate. Roorbach v. Lord, 4 Conn. 347, 348; Dorrance v. Raynsford, 34 A. 706, 67 Conn. 1, 52 Am.St.Rep. 266; Gray v. Goddard, 98 A. 126, 90 Conn. 561.

The " distribution" of the property in the estate of a deceased person is the division of it among those who are entitled by law to receive it. Hotchkiss' Appeal, 95 A 26, 89 Conn. 420, 427. After the filing of the final...