In re William A. Lawrence's Will, Alma A. Whalley, And Arthur O'bryan

• Decision Date: 07 October 1919
• Citation: 108 A. 387,93 Vt. 424
• Parties: IN RE WILLIAM A. LAWRENCE'S WILL, ALMA A. WHALLEY ET AL., APPELLANTS, AND ARTHUR O'BRYAN, APPELLANT
• Court: Vermont Supreme Court

108 A. 387

93 Vt. 424

IN RE WILLIAM A. LAWRENCE'S WILL, ALMA A. WHALLEY ET AL., APPELLANTS, AND ARTHUR O'BRYAN, APPELLANT

Supreme Court of Vermont

October 7, 1919

May Term, 1919.

APPEAL from the decree of distribution by the probate court for the District of New Haven in the estate of William A. Lawrence deceased testate. Trial by Court at the June Term, 1918 Addison County, Fish, J., presiding. Judgment reversing the judgment of the probate court, and for the appellants. The appellees excepted. The opinion states the case.

The judgment below in both cases is reversed, and judgment for the appellees in both cases is rendered affirming the judgment of the probate court for the district of New Haven, with costs to the appellees. Let the case be certified back to that court.

Chas I. Button and Wm. B. C. Stickney for the appellees.

Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

MILES

This case, with In re Will of William A. Lawrence Arthur O'Brien, appellant, came to the county court on appeal from an order of distribution of the probate court for the district of New Haven, in the settlement of the estate of William A. Lawrence, who at the time of his death and for a long time previous thereto had his domicile in Bristol in said district. The cases were tried together by the county court, facts were found and judgment rendered thereon in both cases, sustaining the appeal and reversing the decree of the probate court with costs to the appellants. To this judgment the appellees took exceptions, and also took several exceptions to the finding of facts, and the case came here on those exceptions and on an exception taken to the admission of the inventory of property of the testator, filed in the California court.

The facts found, which were not excepted to, are substantially as follows: The appellants in both suits are legatees in the will of the testator. A part of the testator's estate was in Vermont and a part in California. The total estate in California, after the payment of debts and expenses of administration in that state, was $ 17,640.40 as reported by the California court, and the total estate of the testator in Vermont was $ 45,500, as reported by the California court, making the total value of the testator's estate in Vermont and California $ 63,140.40. As stated by the California court, the specific bequests to individuals and benevolent and charitable institutions amounted to $ 56,193.50. The amount given to persons was $ 31,693.50, and to charitable and benevolent societies $ 24,500. The residue of the estate given to charitable and benevolent institutions amounted to $ 6,946.90, which added to the special bequests to those institutions, made the bequests to such institutions amount to $ 31,446.90. The bequests to those institutions, therefore, amounted to a sum exceeding one-third of $ 63,140.40, the total estimated estate of the testator, in the sum of $ 10,400.10. This sum the California court distributed among the heirs of the testator. There were eleven heirs in all. To each of seven the court decreed $ 945.46 and to each of four $ 945.47. To eight of those heirs the testator bequeathed $ 200 each, to one $ 3,000, to another $ 2,000, and to appellant, Arthur O'Bryan, $ 1,500. To the Vermont executor the court remitted the balance of the $ 17,640.40 to be distributed under the will. In making this decree the California court acted under section 1313 of the California code, which is as follows: "No estate, real or personal, shall be decreed or devised (1) to any charitable or benevolent society or corporation or (2) to any person or persons in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease of the testator; and if so made at least thirty days prior to such death, such devise or legacy and each of them shall be valid; provided that no such devises or bequests shall collectively exceed one-third of the estate of the testator, leaving legal heirs, and in such case a pro rata deduction from such devises or bequests shall be made so as to reduce the aggregate thereof to one-third of such estate; and all dispositions of property made contrary hereto shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law."

The appellants received the amounts decreed by the California court and now ask to receive the specific legacies given in the will. The probate court for the district of New Haven refused to order payment in full to those heirs on the final settlement of the testator's estate, but ordered and decreed that the bequests to those heirs should be reduced by the amount received by each from the estate in California, and on this basis made a decree of distribution, and it is from this decree that the appellants took their appeal to the county court.

The court below found that the estate of the testator in California included both real and personal property. To this finding the appellees excepted and to the reception of the inventory of the testator's property in California as evidence to prove that the property there administered was partly real, and this is the first exception to be considered.

As a matter of fact the estate in California was partly real at the time the inventory was taken, and so continued until its sale under the provisions of the will, after which it became personal and was so treated by the California court in its decree to the heirs and in its remittance to the Vermont executor. It is a well-settled rule of law as administered in equity that, in the constructions of wills in which real estate is ordered to be sold and turned into money, courts of equity, in dealing with the subject, consider it as personal. Ritch v. Talbot, 74 Conn. 137, 50 A. 42; 9 Cyc. 830, IV; Greenwood v. Greenwood, 178 Ill. 387, 53 N.E. 101; Nevitt v. Woodburn, 175 Ill. 376, 51 N.E. 593; Hammond v. Putnam, 110 Mass. 232; Askew v. Douglass, (N. J.) 3 A. 263; In re McGraw, 111 N.Y. 66, 19 N.E. 233, 2 L.R.A. 387; Kane v. Gott, 24 Wend. 641, 35 Am. Dec. 641; Proctor v. Ferebee, 36 N.C. 143, 36 Am. Dec. 34; Peter v. Beverly, 10 Pet. 532, 9 L.Ed. 522; Craig v. Leslie, 3 Wheat. 563, 4 L.Ed. 460; Wharton's Conflict of Law, § 591b.

To work a conversion while the property remains unchanged in form, there must, however, be a clear direction to convert it. 9 Cyc. 831. In the will of the testator the intention is clearly expressed that his real estate not specifically devised be converted into money. None of the real estate in California was specifically devised. It was clearly the intention of the testator to have the real estate in California converted into money and distributed among the legatees named in his will. The bequests to the several legatees named in his will were of the avails of that real estate, and not of the real estate itself, and those bequests took effect after the sale, and hence, under the well-settled rule above stated, that real estate is to be considered personal. The will, therefore, which is made a part of the findings, under the decision of the cases above cited, settles the character of the property in California for the purpose of distribution and renders the finding that the estate in California was partly real, colorless and the admission of the inventory harmless error, though its reception may have been error. This holding renders this exception of no avail to the appellees.

The second and third exceptions are taken as to findings of fact, but those findings were evidently intended as an opinion of the law governing the facts found upon which the judgment was based and will be taken care of in our treatment of the exception to the judgment.

The fourth exception to the findings is of no importance, one way or the other.

The exception to the court's failure to find, expressed in the fifth exception, if well taken, which we do not decide, is harmless error, if any, for the figures and statements in the case from which the facts claimed to have been omitted can be readily ascertained.

The sixth exception is taken care of in the briefs of the appellees before the trial court, which are made a part of the case and show what their claims were.

The exception to the admission of evidence is disposed of in the treatment of the first exception.

The question raised on the exception to the judgment may as well be treated generally as to follow the order in which it is presented in the appellees' brief.

Having already held that the testator's property in California is to be considered as personal, the discussion here involved relates to that class of property alone, and the authorities relating to real property, cited by the appellants, become unimportant. The appellants contend that, even if the property in California was wholly personal, the California court, under section 1313 of the California code, had power to distribute it as it did, notwithstanding that the laws of that state were in conflict with the laws of the testator's domicile. Admitting, but not deciding, that such is the fact, it does not follow that the appellants are entitled to receive in full under the will and also hold under the decree of the California court to its full extent; for the California court, though acting within its jurisdiction, could not oust the Vermont court of its jurisdiction to construe the testator's will and finally settle his estate according to the laws of Vermont.

The California court having decreed to eleven of the testator's heirs, $ 10,400.10, contrary to the intentions of the testator as clearly expressed in the provisions of his will, and those heirs having accepted the sum decreed to each, the question arises whether they are entitled to receive their...