In re Dickerson

• Citation: 10 A. 194,55 Conn. 223
• Parties: In re DICKERSON and others.
• Decision Date: 31 March 1887
• Court: Supreme Court of Connecticut

10 A. 194

55 Conn. 223

In re DICKERSON and others.

Supreme Court of Errors of Connecticut.

March Term, 1887.

L. Warner and G. S. Stoddard, for appellant. E. M. Lees and R. E. DeForest, for appellees.

PARDEE, J. Sarah Williams made a will in 1856. She then owned real estate in the towns of Westport and Easton. She subsequently acquired real estate in the towns of Westport and Norwalk. She died in 1885, owning all of this real estate. By her will, she devised in fee to Gershom B. Bradley all her real estate in Westport; the remainder of her real and personal estate to him, with other devisees. The probate court ordered all of the real estate in the town of Westport owned by the testatrix at the time of her death to be distributed to him. Two of the heirs at law and legatees, and an assignee of another heir at law of the testatrix, appealed from so much of said order as distributed to Gershom B. Bradley all the real estate owned by the testatrix at the time of her death. The appellee or defendant Gershom B. Bradley moved the superior court to dismiss the appeal for reasons as follows, viz.: Because it does not appear from said appeal, or from the record of the court of probate in said cause, that the appellants, or any of them, have any interest in or right to prosecute said appeal in this court; or that the order of distribution complained of by them, and from which they have appealed, is injurious to them, or either of them; and because it is not alleged, and does not appear from said appeal or otherwise, that the order of distribution so appealed from is not according to the will of the said Sarah Williams, deceased, and according to law. The court denied the motion; and, upon hearing, decreed that so much of the order of the probate court as ordered all of the real estate owned by the testatrix at the time of her decease in the town of Westport to be set to Gershom B. Bradley be reversed and set aside; and that all the real estate acquired by the testatrix after the execution of the will should be distributed as intestate estate.

Gershom B. Bradley, the defendant, appealed to this court for these reasons, viz: "(1) That the court erred and mistook the law in refusing to dismiss said appeal upon the motion of the appellee as of record, and for the reasons therein stated; (2) that the court erred in rejecting the evidence offered to prove that after the making of the will, and after the testatrix acquired the Burns property, she told the said Gershom B. Bradley that she had given to him this Burns property, and that she had given to him all her real estate in the town of Westport, and that she read to him the second clause in the will, to show that she had given it to him; (3) in adjudging and decreeing that the real estate situated in said Westport, and acquired by the testatrix after the making of said will, did not pass by said will to said Gershom B. Bradley; (4) in finding, from the facts proven in the case, that all the real estate acquired by the testatrix after the execution of the will is intestate estate, and ordering the same to be distributed as such; (5) that the court erred and mistook the law in reversing the decree of the court of probate."

The statute gives the right of appeal from any decree of the probate court to any person aggrieved thereby, that is, to any person who will thereby suffer pecuniary injury; but it must appear in his motion to the probate court for an appeal that he will thus suffer. Two of the appellants aver that they are heirs at law of the testatrix; and legatees under her will; another, that he is assignee of an heir at law. All aver that they are aggrieved by an order of the probate court which set to Gershom B. Bradley all of the real estate in the town of Westport owned by the testatrix at the time of her death. Under our rules of practice in the probate court, this was a sufficiently explicit averment that, if the order complained of had not been passed, a portion of the land in Westport would have been set to them. This meets the requirement of the law. The appeal was well taken.

By the common law of this state prior to 1831, and of England prior to 1837, a devise of all real estate did not carry such as the testator acquired after the date of his will. A bequest of all his personal property carried all owned by him at the time of his death. In this state, in 1831, a statute provided that "any person, having power to dispose of real estate by will or testament, may by such will or testament devise such real estate not owned by him at the time of making the same, but acquired afterwards." In 1848, the following provision was added, viz.: "And every devise purporting to be a devise of all the real estate of the testator shall be construed to convey all the real estate belonging to him at his decease, unless it shall clearly appear by the will that he intended otherwise." In 1837, in England, a statute provided "that every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will."

Of the English statute this court said, in Gold v. Judson, 21 Conn. 623, in 1852, as follows, viz.: "This statute was passed to get rid of the principle in their law that a will spoke from its date as to real estate; for, by their law, no real estate passed by a will but what the testator had when he made his will; but as to his personal property the law of England and of this state now is, and has ever been, otherwise. We have a statute in relation to real estate substantially like the English statute above referred to." Therefore, by these statutes in this state and in England, the distinction in this regard, between the devise of real estate and the bequest of personal property, was abolished; and in the opinion of this court above cited the statutes of the two jurisdictions are of the same import, and for the same purpose, and are to receive the same interpretation....