Hewitt v. Sanborn

• Decision Date: 19 September 1925
• Citation: 130 A. 472,103 Conn. 352
• Court: Connecticut Supreme Court
• Parties: HEWITT v. SANBORN ET AL.

130 A. 472

103 Conn. 352

HEWITT v. SANBORN ET AL.

Supreme Court of Errors of Connecticut.

September 19, 1925

Appeal from Superior Court, New Haven County; Allyn L. Brown, Judge.

Action by Harrison Hewitt, administrator c. t. a. of the estate of John Beattie, deceased, against George E. Sanborn and others to restrain waste, and cross-complaint by defendants for relief in quieting title and a declaratory judgment. Judgment for plaintiff on complaint and cross-complaint, from which defendants appeal. Error and judgment reversed, with directions.

The plaintiff is administrator, with the will of the testator to his administration annexed, upon the estate of John Beattie, late of Guilford, deceased, and brings this action against George E. Sanborn et al. including himself as administrator upon the estate of Isabel Sanborn, late of Guilford, claiming that her heirs at law now in the occupation of certain real property in Guilford, which formerly belonged to Beattie, had cut down and carried away certain trees on this property and threatened to continue so to do thereby wasting and destroying the estate, and that outside of this property there was not sufficient assets to pay the claims against Beattie's estate, and praying for an injunction to restrain further waste. The answer of the defendants sets up facts averring the devise of the land to Isabel Sanborn, her continued possession and that of her children and heirs at law, which latter claim title to the property both by devise and adverse possession, and claiming that the plaintiff was not entitled to an injunction, and cross-complaint claiming that defendants were entitled to certain relief in the way of quieting title, and a declaratory judgment as to the same.

John Beattie died in Guilford leaving a will dated April 20, 1899 which was admitted to probate on December 12, 1899. His sons Peter Beattie and John Beattie, Jr., were named executors in the will and qualified and served as such until their resignation in 1919, when the plaintiff was appointed administrator as before stated, and is now serving as such. In his will, the testator directs the payment of his debts, makes certain bequests of personalty to his wife, and then proceeds as printed in the margin.

" Third: I give, devise, and bequeath to my daughter, Isabel Sanborn, so much of the farm, with the buildings thereon which I purchased from William Wilcox, and which lies north of the public highway, which leads from the Leete's Island station, to the house of Calvin M. Leete, so much of said farm and buildings to be hers in fee simple.

Fourth: I give, devise and bequeath all of my estate, whether real, personal or mixed, and wherever the same may be situated, to my sons, Peter Beattie and John Beattie, Jr., to be held by them in trust for the purpose hereinafter set forth, and with the powers hereinafter mentioned and provided.

(1) I authorize said trustees, and I direct them, at their discretion, to sell and make good conveyance of any of my estate, whether real, personal or mixed, except the developed quarry property at Leete's Island, of which I am the sole owner; and I also authorize said trustees to convey any of my real estate, including any or all of my quarry property to, and to invest any of my personal estate in, a joint stock company which they may form or cause to be formed under the laws of the state of Connecticut, for the purposes of carrying on the business of quarrying stone, dressing, preparing, selling and transporting stone, for any purpose for which stone may be used in the ordinary course of the business of constructing by contract or otherwise, public or private works of any description, in which the use of stone from said quarry shall be a part of the material employed and used, and for the purpose of quarrying, preparing and selling stone from any quarries belonging to said joint stock company; provided, however, that said trustees shall always keep and hold at least three-fourths of the stock of such corporation in their names as trustees, such stock to be a part of the trust estate created by this will.

(2) Said trustees are hereby authorized and fully empowered to form and organize a joint stock company under the laws of the state of Connecticut, and they may transfer to such company the whole or any part of the trust estate in their hands, subject, however, to the proviso at all times at least three-fourths of the stock of such company shall be held by said trustees, as trustees, for the purposes named in this will.

(3) Said trustees are to pay from the net income of the trust estate in their hands, any annuities, charges or obligations which I may be under by reason of any contract or obligation I have entered into, and they may, at their discretion, set apart any part of the trust estate in their hands as a special fund, charged with the payment of such annuities, charges or obligations.

(4) After the payment of any charges or obligations as the same are set forth in the foregoing clause of this will, said trustees are directed to pay from the net income of the trust estate the sum of $1,200 annually, during the continuance of her life, to my wife, Mary G. Beattie, such payment to be made in quarterly payments of $300 each.

(5) After the payment of the annuity to my said wife, I direct my said trustees to pay from the remainder of the net income in their hands, the sum of $400 annually to my daughter, Isabel Sanborn, in quarterly payments of $100 each, such payments to be made during the life of my said daughter."

Testator next directs the payment of $1,000 each by his trustees out of the net income or principal of the trust estate to each of the children of his deceased son George, when they severally become 21 years old. Also he directs payment of the net income of the trust estate to his sons, Peter, John, Frank, David, and Thomas during the continuance of the trust, with provision for payment to the representatives of any son dying during its continuance. He further directs his trustees to employ his sons in the quarry business " if they continue to be sober and industrious," and then proceeds as follows:

" (9) Until my said trustees shall find it expedient and proper to organize a joint stock company under the authority given them in this will, I authorize them to use any or all of the trust estate herein devised to them, for the purpose of carrying on the quarry business, and the business of preparing, selling and transporting stone as it is now carried on by me at Leete's Island.

(10) Neither my said trustees nor executors shall have the power to put any mortgage or any other incumbrance upon the real estate herein devised.

(11) When the last survivor of my said sons, Peter, John, Jr., Frank, David and Thomas, shall die, the trust herein created shall terminate, and all of the estate belonging to the said trust shall be divided among the male heirs of the bodies of my said sons who may be then living, in equal portions, per capita; and if there shall be no male heirs of the bodies of my said sons then living, then said trust estate shall be distributed among the heirs at law of my said sons according to the provisions of the statutes of Connecticut."

On November 17, 1899, the testator executed a codicil to his will providing as follows:

" I hereby direct that no part of my estate, either real or personal, be disposed of for a period of three years after my decease, except that my executors may sell building lots at their discretion.

And the proceeds of my property sold after my decease shall be added to my estate as a part of the capital or fund for business transactions."

The trial court finds that the testator died possessed of over 325 acres of real property at Leete's Island, including four tracts aggregating in area about 54 acres, which latter make up the land devised as above set forth in the will to Isabel Sanborn, and which will hereinafter be designated as the Sanborn farm. The inventory of the estate included about 325 acres of land at Leete's Island, with buildings thereon valued at $13,421, and personal estate of boats, derricks, quarry implements, etc., valued at $50,976.61, and also choses in action, consisting of actions pending in court to a considerable amount. The list of claims against the estate filed in the court of probate aggregated $35,036.86. At the time of John Beattie's death and for several years thereafter, the personal property not specifically bequeathed and the real property not specifically devised in his will, which belonged to his estate, was more than sufficient to pay in full all ante mortem claims against his estate, as well as the expenses of administration thereof, exclusive of expenses incurred by the executors in carrying on the quarry business.

The executors continued to carry on the business of their deceased father until 1919. They from time to time filed in the probate court detailed accounts of their doings as executors, including among other things the names of creditors and the amount of indebtedness contracted. All such accounts after due notice and hearing by the probate court were allowed, approved, and accepted. In December, 1909, two heirs of John Beattie, other than defendants Sanborn or their mother, appealed from the order and decree of the court of probate accepting the executors' accounts, and the appeal was fully heard and determined by the superior court, and the account was accepted and the action of the court of probate was confirmed, although no order of the probate court expressly authorizing the executors to carry on the business was ever passed.

There was unusual difficulty incident to administering this estate due to the character of the assets, the amount of litigation...