Hall v. Pierson

• Decision Date: 09 September 1893
• Citation: Hall v. Pierson, 63 Conn. 332, 28 A. 544 (Conn. 1893)
• Court: Connecticut Supreme Court
• Parties: HALL v. PIERSON.

28 A. 544

63 Conn. 332

HALL

v. PIERSON.

Supreme Court of Errors of Connecticut.

Sept. 9, 1893.

Appeal from superior court, New Haven county; G. W. Wheeler, Judge.

Suit by Henry P. Hall, executor of the will of Seymour D. Hall, deceased, against Lucy M. Pierson, formerly wife of testator, to enjoin assignment of dower to her.Judgment on demurrer for defendant.Plaintiff appeals.Reversed.

H. G. Newton and H. F. Hall, for appellant.

W. L. Bennett and T. E. Doolittle, for appellee.

FENN, J.The original complaint in this action alleged, in substance, that the defendant was the former wife of Seymour D. Hall, the plaintiff's testator, and was divorced from him on her complaint; that afterwards, in the lifetime of the testator, she accepted a note for $550, signed by the plaintiff personally, and in consideration thereof made a contract with the testator, for the benefit of his estate, in writing, but not under seal or acknowledged, by which she granted, quitclaimed, and released all right of dower and one-third interest which she might have had thereafter in or to the real property of the testator, so that she should not thereafter have any claim on his property; that, after the death of the testator, she demanded and received payment of the note, and was then requested by the plaintiff to execute and deliver to him, as executor of the testator's estate, a deed releasing the estate from any claim on her part for dower, but that she refused to do so, and claimed the right of dower in the real estate belonging to the estate, and that she presented to the court of probate for the district of Wallingford, in which district the estate of the testator was and still is in process of settlement, a petition to have dower assigned to her, and, notwithstanding the opposition of the plaintiff, the court of probate passed an order for the assignment of dower, as prayed for in said petition, and for the appointment of distributors to set out dower to her in the real estate of the deceased, which is described.It was further alleged that "it will be necessary to sell all or a large portion of said real estate in order to pay the debts of said Seymour D. Hall and the expenses of settlement."It was also alleged that such acts constituted a cloud upon the title of the real estate, made it difficult or impossible to sell the same at a fair valuation, decreased its value to the estate, and caused loss, trouble, and expense to the plaintiff, as executor, in defending the same; and that the defendant intended to make a sale and conveyance of her pretended right to a bona fide purchaser, and thus cause further trouble and expense.And the plaintiff thereupon claimed an injunction against such conveyance, against further claim of title to dower, and further action, suit, or proceeding in any court to obtain the same; also that the defendant be required to execute a release, and that judgment be rendered that she has no right, title, interest, or claim of dower, and for pecuniary damages.Upon this complaint a temporary injunction against a transfer or conveyance only was granted by the superior court, which continues in force.To the above complaint the defendant demurred, assigning four reasons, three of which— the first, third, and fourth—were sustained by the court, and are as follows: "(1) That it does not appear by said complaint that the plaintiff, as executor of the last will of said Seymour D. Hall, has any such interest in the property and right in question as to bring this suit.""(3) That it appears by said complaint that the matters in said complaint set out have been decided adversely to the claim of the plaintiff by a court of competent jurisdiction.(4) That it appears by said complaint that said plaintiff was present, and had opportunity to present the matters in said complaint set out to the court of probate for the district of Wallingford as a defense and in opposition to the said petition of the defendant for assignment of dower; and that said court of probate, notwithstanding the opposition of the plaintiff, decided the issue in favor of the defendant and assigned to her dower as prayed for in said petition."After the judgment of the court sustaining the demurrer as above, an application was made to the court by Seymour D. Hall, of Wallingford, who, it was alleged, "brings this application by Henry F. Hall, his next friend," stating that he was the son of the testator, Seymour D. Hall, deceased, and the sole heir and sole legatee and devisee under his will, and asking to be joined as a coplaintiff in the action with the executor.This application was denied by the court.Afterwards the plaintiff asked, and was refused, leave of the court to file an amendment to the complaint, alleging that the defendant, at the hearing in the court of probate, introduced no evidence, but claimed that the court of probate had no jurisdiction to determine the validity of the writing executed by the defendant, and that the plaintiff must enforce his rights growing out of said transaction in some other jurisdiction, if at all.The plaintiff, in his appeal from the adverse judgment of the court, assigns as error the various rulings aforesaid, adding: "And Seymour D. Hall, of Wallingford, by Henry P. Hall, his next friend, joins in this appeal, and in the prayer for relief thereto, so far as relates to his application to be made a partyplaintiff."

The question which is fundamental in this case is that raised by the third and fourth reasons of demurrer to the complaint, which were sustained by the court below.We will therefore first examine that question.The successful contention of the defendant in that court is stated by her counsel, in their brief filed in this court, in these words: "The superior court has no jurisdiction.Jurisdiction over the matter is in the court of probate, and that court has taken jurisdiction, and has acted."It is manifest that the question here presented is of much importance, since its determination may not only be decisive of the case before us, but a clear understanding of the doctrine of the cases cited by counsel in argument, and of other cases on the subject, in this state, will be of great and far-reaching practical utility.We therefore regard it as our duty to consider it fully.It will be readily seen, we think that questions which may arise concerning the right of an applicant (or, if application is made by those interested in an estate, or the creditors of a widow, of the person to whom it is asked that dower may be set out) to such assignment by a court of probate can be appropriately divided into three general classes: First, whether such applicant possesses the legal or statutory requisites to entitle her to such assignment; second, whether, notwithstanding such strict statutory requisites may exist, there are other grounds or equities which bar or prevent the existence of a right of dower against the estate; and, third, whether, although at the time of the decease of the person whose estate is in settlement a right of dower did exist, the applicant has subsequently parted with or estopped herself from the assertion of such right.In reference to the first and last of these three classes of questions there can be, we think, but little difficulty in understanding the power, duty, and jurisdiction of courts of probate.Such uncertainty as there may be pertains to the second class.All questions which may arise as to whether the applicant for the set-out of dower possesses the statutory requisites to entitle her to such assignment belong to the exclusive jurisdiction of courts of probate.Those requisites are now to be found stated in Gen. St. §§ 618, C21, 622.To be entitled to dower, the person must have been the wife of the decedent, married prior to April 20, 1877, and living with her husband at the time of his death, or absent by his consent or by his default or by accident. or have been divorced without alimony, she being the innocent party, and a suitable provision must not have been made for her support before the marriage by way of jointure or a settlement of property the title to which shall not have failed wholly or in part, in her favor, in contemplation of marriage, to take effect after the death of the intended husband, and expressed to be in lieu of dower; and she must not have, with her husband, during the marriage, entered, in the manner provided by statute, into a contract for the abandonment of common-law rights in the property of each other.Nor must she, by failure to decline to accept, as prescribed by statute, a devise or bequest to her in lieu of dower, have become debarred of her rights.Whenever application is made to a court of probate to have dower assigned, the court, as was said in Hewitt's Appeal, 53 Conn. 36, 1 Atl. 815, should, before making such assignment, be "reasonably satisfied" that the applicant or person to whom it is asked that dower be assigned "possesses the statutory requisites."The duty and jurisdiction of courts of probate in this regard are similar to that which such courts exercise in passing an order directing the estate of an intestate to be distributed to the persons found by them to be the heirs at law and entitled to the estate, and should, therefore, until set aside on appeal, have the same conclusive effect.Kellogg v. Johnson, 38 Conn. 269.It is true, even as applied to such a case, as was said in Hewitt's Appeal, supra, that "the assignment of dower does not establish the title of the applicant to dower in the lands assigned, any more than the setting off of lands on an execution establishes the title to the lands in the execution creditor.* * * All that is done in either case is simply to designate the lands in which dower exists in one case, if it exists at all, and to satisfy the debt in the other, if title by the levy is acquired, which depends upon the execution debtor being the owner of the lands set off.If the...