Johnes v. Beers

• Decision Date: 25 April 1889
• Citation: 18 A. 100,57 Conn. 295
• Court: Connecticut Supreme Court
• Parties: JOHNES v. BEERS et al.

18 A. 100

57 Conn. 295

JOHNES

v. BEERS et al.

Supreme Court of Errors of Connecticut

April 25, 1889.

Case reserved from superior court, Fairfield county.

Suit by Goldsmith D. Johnes, as executor and trustee of the will and estate of Henry J. Beers, deceased, against Julia A. Beers, Henry J. Beers, and others, for the construction of the will of said Henry J. Beers. The allegations of the complaint having been found true by the court below, the case was reserved for advice.

J. H. Perry, for defendant Henry J. Beers. G. Stoddard, for defendant Julia A. Beers.

PARDEE, J. Henry J. Beers executed his will in 1882, and died in 1884; his wife, one son, William A. Beers, and three daughters surviving. After giving to his wife the use of certain lands for life, the will proceeds as follows: "Fifth. I order and direct my executor and trustee hereinafter named to collect and set apart from my estate securities producing interest of the par value of the sum of seventy-five thousand dollars, and to collect and receive and pay the income derived therefrom as fast as the same shall be received to my said wife, so long as she may live. * * * Seventh. Immediately upon the death of my said wife, or, if she should die before me, then upon my decease, I order and direct my said executor and trustee to turn said aforementioned real and personal property into money, and to divide the same into four equal parts, and pay one part thereof to my son, William A. Beers; one part to my daughter Mary B. Johnes, wife of Goldsmith D. Johnes; one part to my daughter Addie Curtiss, wife of Henry W. Curtiss; and the remaining part to my daughter Elizabeth G. Alsop, wife of Charles R. Alsop. In case of the death of any of my said children, I order and direct that the part of him or her so dying be paid to his or her lawful issue, and, in case he or they shall die without leaving any lawful issue, to pay and divide the part of him or her so dying to and amongst my surviving children, and the lawful descendants of any of my said children, William, Mary, Addie, and Elizabeth, who may have deceased, such descendants of children to receive per stirpes, and not per capita. Eighth. For the purpose of carrying into effect the aforementioned purposes, I give, devise, and bequeath to my said executor and trustee all of my said aforementioned real and personal estate, in trust, however, giving and granting unto him full power and authority to sell and convey the same to effectuate the purposes of this, my will. Ninth. All the rest, residue, and remainder of my estate, both real and personal, and wheresoever the same may be situated, and the rents, issues, and profits thereof, I give, devise, and bequeath to my executor and trustee hereinafter named, in trust, nevertheless, upon my decease to convert the whole thereof into money, and to divide the same into four equal parts, and to pay one equal part thereof to my said son, William A. Beers absolutely; one part thereof to my said daughter Mary B. Johnes absolutely; one part thereof to my said daughter Addie Curtiss absolutely; and the remaining part to my said daughter Elizabeth G. Alsop absolutely. In the event of the death of either of my said children before he or she shall have received his or her share, then to pay the share of him or her so dying to his or her lawful issue. In case he or she shall die without leaving lawful surviving issue, then to pay the part of the one so dying to my surviving children, and to the issue of such of my said children, William, Mary, Addie, and Elizabeth, who may have died, such issue to take per stirpes, and not per capita."

Goldsmith D. Johnes, the husband of the testator's daughter Mary, was made executor and trustee. As such he asked the superior court for instructions as to his duty in the matter. In his complaint he alleges, among other things, as follows: "Since the death of said testator, and on the 9th day of December, 1887, William A. Beers died, leaving him surviving his widow, Julia A. Beers, and one son, Henry J. Beers. William A. Beers bequeathed and devised all his estate to Julia A. Beers, his widow. Prior to the death of William A. Beers the...