Hollister v. Butterworth

• Decision Date: 26 July 1898
• Citation: 40 A. 1044,71 Conn. 57
• Court: Connecticut Supreme Court
• Parties: HOLLISTER v. BUTTERWORTH.

40 A. 1044

71 Conn. 57

HOLLISTER

v. BUTTERWORTH.

Supreme Court of Errors of Connecticut.

July 26, 1898.

Case reserved from superior court, New Haven county; William T. Elmer, Judge.

Suit by John C. Hollister, administrator, against George F. Butterworth, executor, and others, to determine the validity and construction of the will of Jeannette A. Strong, deceased. Reservation to the supreme court of errors.

Action by an administrator cum testamento annexo for the construction of the will, reserved for the advice of this court on the complaint and answers. The will was that of Jeannette A. Strong, of New Haven, made in 1845, and proved in 1857. The material part of it read as follows: "I give and devise one-half part of all my estate, both real and personal, to my son, Charles Edward Strong, during his life, and after his death to his lawful children, in fee simple, to be equally divided between them; but, if he die without such children or their issue surviving, then I give and devise the said one-half part to my daughter, Julia Weeks Strong, during her life, and after her death to her children, in fee simple, to be equally divided between them; and, if she leave no children, then to my own right heirs. The other and remaining half part of all my estate, both real and personal, I give and devise to my said daughter, Julia Weeks Strong, during her life, and after her death to her children, in fee simple, to be equally divided between them; but, if she die without such children or their issue surviving her, then I give and devise this one-half part to my said son, Charles Edward Strong, during his life, and after his death to his children, in fee simple, to be equally divided between them; but, if he leave no children, then to my own right heirs." The testatrix, her daughter, who had married Theodorus Bailey, and the son-in-law, all perished at sea, in a common disaster, November 3, 1856. Mrs. Bailey left no surviving issue. Charles E. Strong survived his mother, and had an only child born in 1851, who was married to Arthur Nelson Welman in 1878. By an antenuptial settlement, she had conveyed all her property in trust, under which Henry C. White was, in 1898, the sole trustee. Charles B. Strong died in 1897, leaving a will in which he made provision for his widow and daughter, giving the latter a power of appointment as to the residue, with remainder to a hospital in the event of her death intestate without issue and without exercising the power.

The questions of construction submitted were as follows: (a) Is there any presumption, upon the facts stated, that Jeannette A. Strong survived her daughter, Julia Weeks Bailey? (b) Is there any presumption, upon the facts stated, that said Julia Weeks Bailey survived her mother, Jeannette A. Strong? (c) Is there any presumption, upon the facts stated, that they both died at the same moment of time? (d) Upon the facts stated, are the property rights of the parties in the estate of Jeannette A. Strong to be determined as if both she and her daughter died at the same time? (e) Does the phrase in the second part of said will, "die without such children or their issue surviving her," refer solely to the death of the daughter before the death of her mother? (f) Under...