Houghton v. Brantingham

• Decision Date: 17 April 1913
• Citation: 86 Conn. 630,86 A. 664
• Court: Connecticut Supreme Court
• Parties: HOUGHTON v. BRANTINGHAM et al.

86 A. 664

86 Conn. 630

HOUGHTON

v. BRANTINGHAM et al.

Supreme Court of Errors of Connecticut.

April 17, 1913.

Case Reserved from Superior Court, Fairfield County; Lucien F. Burpee, Judge.

Action by Walter E. Houghton, executor, against Charles H. Brantingham and others to determine the construction and validity of the will of Martha C. Brantingham, deceased, reserved by the superior court for the advice of this court on certified questions arising on the admitted facts of the pleadings. Questions answered, so far as relevant to the construction of the will adopted.

The will, as originally written in French, was as follows:

"Ceci est Mon Testament.

"Je soussign#233; Martha Coggeshall Hawley Veuve Brantingham donne et légue à mes deux fils Charles Hawley Brantingham et Francis Edward Brantingham conjointement et avec accroissement entre eux l'universalité de tous les biens et droits mobiliers et immobiliers qui composeront ma succession pour étre partagés entre eux ou leurs enfants légitimes par égales parts et par souche. Comme condition express du legs ci-dessus à la mort de l'un de mes deux fils ou de ses représentants, je veux que tous les biens et droits qu'il aura recueillis dans ma succession soient remis et deviennent la propriété du ou des survivants d'entre eux.

"Je nomme pour exécuteur testamentaire Walter E. Houghton Trésorier de la Citizens Savings Bank de Stamford Connecticut EtatsUnis d'Amérique avec tous pouvoirs et mission de veiller à la stricte exécution de conditions ci-dessus.

"Je révoque tout précédent testament voulant que celui-là seul soit éxécuté comme contenant mes dérnièes volontés.

"Fait à Cannes le 31 Mars 1906.

"Martha C. Brantingham."

The testatrix, who resided in Stamford, in this state, executed, while in France, a holographic will in the French language. The will was admitted to probate by the court of probate for the district of Stamford. The will is printed in the margin. The following is a translation of it as filed in the court of probate:

"I, the undersigned, Martha Coggeshall Hawley, widow Brantingham, give and bequeath to my two sons, Charles Hawley Brantingham and Francis Edward Branting ham, jointly and with right of accretion between them the entirety of all goods and rights movable and immovable which comprise my estate, to be divided between them or their legitimate children in equal parts and per stirpes. On express condition in respect to the legacy aforesaid, at the death of one of my two sous or his representatives, I will that all the goods and rights which he has received in my succession shall be delivered up and become the property of the survivor or survivors of them.

"I name for executor testamentary Walter E. Houghton, treasurer of the Citizens' Savings Bank of Stamford, Connecticut, United States of America, with all powers and authority to attend to the strict execution of the conditions aforesaid.

"I revoke every former testament, willing that this only shall be executed as containing my last wishes.

"Done at Cannes, the 31st of March, 1906.

"Martha C. rBantingham."

This will was copied by the testatrix from a draft made at her request by a French notary, to whom she had stated her testamentary wishes.

The testatrix died in Switzerland in September, 1911, and left surviving her as her only heirs at law the two sons who are named in the will. Charles H. Brantingham is now 70 years of age, was married in 1883 to his present wife, who is now 59 years of age, and no child has ever been born to them. The other son is now 57 years of age, and has never married The executor has settled his administration account, and has on hand for distribution more than $123,000. The defendants, the two sons, on November 21, 1912, made and executed a mutual division of the assets of the estate, which consist of real estate in Stamford, valued at about $6,500, and stocks, bonds, and other personal securities, and have filed the same in the court of probate. On December 2, 1912, they made and executed between themselves a deed, wherein each purports to relinquish and assign to the other any and all right of survivorship which he may have in and to the part of the estate by said division apportioned and set to the other. They have also made and filed in the court of probate a waiver, each in favor of the other, of any requirement of a bond for the protection and security of any right of survivorship accruing to either of them by virtue of the provisions of the will. They have made demand in writing upon the plaintiff, as executor, that he deliver over to each of them, respectively, the personal property respectively set to each of them in said mutual division. The plaintiff refused to comply with such demand of the defendants, and brought this complaint as an amicable proceeding for advice as to the questions therein propounded. Those questions appear in the opinion.

John E. Keeler, of Stamford, for plaintiff.

Frederick C. Taylor, of Stamford, for defendants.

THAYER, J. (after stating the facts as above). This case, asking the judgment of the superior court upon the following questions arising upon the will of Martha C. Brantingham, deceased, has been reserved by that court for our advice:

(1) "Do the provisions of the first paragraph of said will create a joint estate in the two sons of the decedent, with right of survivorship, and, if so, is the disposition valid?"

(2) "Do the children of said two sons take any interest by virtue of said first paragraph, except in the case of the parent predeceasing the testatrix?"

(3) "Do the provisions of the first and second paragraphs, taken together, create a joint estate in the two sons of the decedent?"

(4) "Is the condition in the second paragraph of said will, requiring the share of the estate received by the son who shall first die to be paid over to the surviving son, repugnant to the absolute gift (if it so be) contained in the first paragraph, and therefore void?"

(5) "Does each of the sons of the testatrix take the portion of the estate bequeathed to him with full charge and management of the same until his death, and in case of its delivery to him should a bond be required?"

(6) "Is the appointment of a trustee to hold said estate required, in order to protect the rights of the survivor?"

(7) "Are the rights of said two sons of the decedent so presently vested by reason of right of survivorship that the executor should make such disposition of the estate as is demanded by them?"

(8) "If said second clause is held to create a right of survivorship to any unborn children of either of the said sons, does this operate to create a perpetuity and thereby vitiate said clause or create intestacy?"

(9) "If the estate shall be held to be intestate, should the executor, upon demand of the defendants, who are the only...