In re Dickerson

• Decision Date: 31 January 1887
• Citation: 55 Conn. 223,15 A. 99
• Parties: In re DICKERSON et al.
• Court: Connecticut Supreme Court

15 A. 99

55 Conn. 223

In re DICKERSON et al.

Supreme Court of Errors of Connecticut.

January 31, 1887.

For majority opinion, see 10 Atl. Rep. 194.

PARK, C. J., (dissenting.)

While agreeing with my brethren in the general principle which they apply to this case, I think they err in their application of it, and I am unable to arrive at the conclusion which they have reached. The first rule in the construction of wills is to ascertain, if possible, and give effect to, the intent of the testator. All other rules give way before this predominating and decisive one. The principle which the majority of the court invoke is an important one, and has its place, but I think must be treated as entirely subordinate to the rule that the testator's intent, where it can be ascertained, shall govern. I consider the present inquiry to be wholly one as to the real intent of the testatrix. In this case the testatrix gave to her nephew, Gershom B. Bradley, all her real estate in Westport. She then gives all the remainder of her estate, real and personal, to six relatives, of whom Bradley was one. She thus disposed of all her property, leaving no part of it intestate, so that no necessity arises for applying any arbitrary rule to avoid partial intestacy. The question becomes the simple one, what she intended by her "real estate in Westport." It appears from the finding that at the time she made her will, in the year 1856, she owned a homestead and real estate connected with it in Westport, which, after her death, was appraised at $2,350. It is of course entirely clear that she intended at this time to give to Bradley this real estate, and this only. She at that time owned no other real estate, except a small quantity in an adjoining town. But in 1860, four years after the will was made, a note for $3,000 was distributed to her as a part of her father's estate, which note was secured by a mortgage on a farm in Westport. This mortgage, in 1877, she foreclosed, and thereby became the owner of the farm, which was covered by the mortgage. She died in 1885, having made no change in her will. It is very clear that it will not do to argue that she deliberately decided to make no change in her will with the intent that this farm should go with her other real estate in Westport to Bradley, for the principle which the majority of the court apply to the case would be equally applicable and controlling if she had died after her father, but before his estate had been distributed, or...