Mahoney v. Mahoney

• Decision Date: 01 March 1923
• Citation: 98 Conn. 525,120 A. 342
• Court: Connecticut Supreme Court
• Parties: MAHONEY ET AL. v. MAHONEY.

120 A. 342

98 Conn. 525

MAHONEY ET AL. v. MAHONEY.

Supreme Court of Errors of Connecticut.

March 1, 1923

Appeal from Superior Court, Hartford County; John P. Kellogg, Judge.

In the matter of the estate of Patrick Mahoney; Michael F. Mahoney executor. From a judgment sustaining a decree of the probate court ordering distribution, Catherine A. Mahoney and others appeal. No error.

Appeal from a judgment of the superior court for Hartford county (Kellogg, J.), sustaining a decree of the court of probate for the district of Hartford ordering distribution of the estate of Patrick Mahoney.

No error.

The testator, Patrick Mahoney, died in 1906 leaving a will which was duly admitted to probate. He left a widow, five sons, two daughters, and nine grandchildren, for all of whom he had affection. His widow died in October 1920, having enjoyed the use and income of the residue of the estate referred to in paragraph 8 of said will. Catherine A Mahoney, one of the daughters of the deceased, survived The testator and the life tenant, and is still living. The other daughter, Elizabeth P. Mahoney, married John S. Fitzsimmons in 1909, and died on or about June 23, 1913, having survived The testator, but died prior to the death of the life tenant in 1920, and left surviving her a daughter, and one of the grandchildren of The testator, Elizabeth Katherine Fitzsimmons, who was born on or about November 6, 1910, and who has survived the life tenant and is still living.

The probate court for the district of Hartford duly made an order for distribution of the residue of said estate, on or about the 20th day of July, 1921, distributing said residue one-half to Catherine A. Mahoney, one of the appellants, and the other one-half of the estate to the estate of Elizabeth P. Fitzsimmons; and on said date appointed distributors thereof. From said order of distribution appellants appealed to the superior court, which sustained the action of the probate court.

The will of The testator, after providing for the payment of debts and giving various legacies to four of his sons and by way of legacy canceling the indebtedness of a fifth son, disposes of the residue of his estate as follows:

" Eighth. I give, devise and bequeath to my wife, Eliza, the use of the income during her lifetime, in lieu of her dower right, of all the rest, residue and remainder of my estate both real and personal of whatever name and nature and wherever situated and at her death the entire residuum of my estate is to be equally divided between my two daughters, Catherine A. and Elizabeth P., one-half to each to be to them, their heirs and assigns forever, but if either of my said daughters shall die before my own decease or that of my said wife leaving no child or children them surviving then I direct that the share which they or either of them would have received had they survived shall become a part of the residuum of my estate, and at the death of my said wife the entire residuum of my estate shall go to the daughter then living, but in case of the death of both of my said daughters before the death of my said wife leaving no child or children at the death of my said wife then I direct that the residuum shall be equally divided between my five sons, viz. Michael F., William E., Henry, Joseph T. and George, share and share alike to be to them their heirs and assigns forever, and in case any of my said sons shall die leaving no child or children then I direct that the share which said son would have received had he survived shall be equally divided between my said sons then living their heirs and assigns forever."

Hearing was had in the superior court upon a motion for judgment by appellees upon the reasons of appeal filed by the appellants and the reply thereto, and at the same time upon motion by appellants for leave to file additional reasons of appeal. The latter motion was granted, and the appeal was afterward heard by the court.

The amendment of the reasons of appeal above referred to was added as subparagraphs to the sixth reason of appeal as originally filed and is in effect as follows: (a) That at the time of the execution of the will testator had ten grandchildren, children of his five sons, for whom no provision was made in the will; (b) that the plan and theory of the will, frequently expressed by The testator, was solely to provide for his two daughters during their lives; (c) that testator's daughter Elizabeth P. Fitzsimmons was sickly and an invalid and unable to perform physical labor, which condition was known to testator and so frequently declared by him; (d) that the conviction that his said daughter would never marry on account of her invalidism had been frequently expressed by The testator, and with that in mind he provided for her in the manner expressed in his will; (e) that said daughter prior to the execution of said will frequently told her father that she would never marry; (f) that the other daughter, Catherine, frequently expressed the same intent not to marry, and in fact never did marry.

Upon the trial in the superior court in support of the reasons of appeal above summarized, appellants offered the testimony of said Catherine A. Mahoney, and propounded questions regarding the relationship of members of the family of the deceased with him and each other, and his feelings toward them; also as to the care given by her to her father during an illness, and his declarations to the witness at that time; also whether he made any declarations concerning his will, and what they were; also as to the condition of health of her sister Elizabeth, and of statements made by the latter as regards her intention never to marry; also whether The testator had received intimations that neither of his daughters would ever marry; also whether The testator in the presence of his wife and two daughters gave any ideas as to the provisions of his will.

All of these questions were objected to, excluded, and exceptions to the exclusion taken by the appellants. It further appears in the finding that--

" For the purpose of the record the appellants offered the appellant William E. Mahoney for the same line of testimony, with the same objections, rulings and exceptions."

Appellants' claims of law as made in the superior court are as follows:

(1) That there is a latent ambiguity and equivocation and doubtful meaning in paragraph 8 of said will.

(2) That there was no limitation over to any heirs or issue in said will, which would be necessary in order that issue should take.

(3) That the interest devised of the residue as set forth in paragraph 8 of said will was a contingent interest and did not vest until after the death of the life tenant.

(4) That said paragraph 8 of said will provided for a survivorship of the " entire residuum" of said estate in the appellant Catherine A. Mahoney.

(5) That as a matter of law said paragraph 8 of said will not only indicated but directed a survivorship of the entire residuum of said estate in said Catherine A. Mahoney.

(6) That any implication arising from the words " leaving no child or children them surviving" is overcome by the plain indication and direction for survivorship as repeatedly provided for in said paragraph 8 of said will.

(7) That if the appellants are in error in their contention of survivorship, and there being no specific devise in said will to any issue of the daughters, or limitation over, and the devise to Elizabeth P. Fitzsimmons having failed because she did not survive the life tenant, and the construction of paragraph 8 of said will, therefore, being so uncertain and doubtful that the one-half of the residuum of said estate so attempted to be devised to the daughter, Elizabeth P. Fitzsimmons, failed and is now intestate estate, in which any issue of said daughter, Elizabeth P. Fitzsimmons, participates.

All of these claims of law were overruled by the court, and this the appellants assign as error, and also the exclusion of the testimony offered in support of the amendment to the reasons of appeal, as above set forth.

William H. Macdonald, of Hartford, for appellants.

Charles Welles Gross, of Hartford, for appellee.

KEELER, J. (after stating the facts as above).

The claim of appellants that while in this state there is practically no difference between joint tenancies and tenancies in common, in that the right of survivorship by common law existing in the case of joint tenancies is not recognized, still the rights of survivorship may be created by will, is undoubtedly true. It is only necessary for a testator to indicate such an intention, and the intention, " if discoverable, will, of course, govern." Allen v. Almy, 87 Conn. 517, 525, 89 A. 205, 208 (Ann. Cas. 1917B, 112). That a right of survivorship as between the two daughters of The testator is created by the will in question is pressed by appellant's counsel and lies at the foundation of several of his claims.

There is nothing in the will whereby provisions as to one person surviving another an estate of survivorship, technically so called, is created. The use of the words " surviving" and " survived" does not of itself create such an estate. These words are used in paragraph 8 of the will simply to designate a person who has lived after the death of another, or to indicate the fact of such continuance of life. Also, as a prerequisite of an estate of survivorship there must exist a joint tenancy in the beneficiaries to be affected by the testamentary disposition. In this will no joint estate in the residuum is created in favor of the two daughters of the testatrix. The whole residuum is given to the use of the widow for her life, and at her death it is to be equally divided between her two daughters named, " one-half...