Miller v. Metcalf

• Decision Date: 12 August 1904
• Citation: 58 A. 743,77 Conn. 176
• Parties: MILLER v. METCALF et al.
• Court: Connecticut Supreme Court

58 A. 743

77 Conn. 176

MILLER

v. METCALF et al.

Supreme Court of Errors of Connecticut.

Aug. 12, 1904.

Case Reserved from Superior Court, New Haven County; Ralph Wheeler, Judge.

Action for the construction of a will by Willis E. Miller, executor of Edwin Marble, deceased, against John T. Metcalf and others. Reserved by the superior court for the advice of the Supreme Court. Judgment advised.

Erroll M. Augur, for plaintiff. George D. Watrous and Henry H. Townshend, for defendants John T. Metcalf and others.

Henry Stoddard, for defendants Mary Elizabeth Day and others.

James H. Webb, for defendant Caroline M. Harris and others.

TORRANCE, C. J. The testator died in May, 1903. His entire estate consisted of certain shares of the capital stock of a corporation, located in New Haven, called the Henry Hooker & Co., and the sum of about $1,300 due to him from said corporation. The capital stock of said company was divided into 8,000 shares, and the testator owned 5,875 of said shares, which were inventoried; at the value of $146,875. His will was executed in September, 1893, and in it he appointed his wife to be his sole executrix and trustee. The will is divided into three main clauses. In the first he provides merely for the payment of his debts. In the second he gives to his wife his entire estate for her life, in trust for certain purposes, one of which was that she should have for life an assured income of $5,000 per annum. About these two clauses no questions arise in this case. Julia E. Marble, the wife of the testator, died in September, 1899, and after this event the testator, in May, 1900, made a codicil to his will. It is mainly with reference to the third clause of the will and to the codicil that the advice of this court is asked. That clause and the codicil read as follows:

"Third. At and upon the death of my said wife I do hereby give, bequeath and devise all of my goods, property and estate as follows, to wit: I do give, bequeath and devise the sum of five thousand dollars ($5,000) to John T. Metcalf, of the city of Brooklyn, New York, and to his heirs and assigns forever, and also the sum of five thousand dollars to each of the nieces and nephews of my said wife who shall be living or whose legal representatives shall be living at the time of the death of my said wife, and to their heirs and assigns forever, provided, however, that no part of any of said bequests shall be either directly or indirectly drawn out of or taken from said corporation or the business thereof until the stockholders of said corporation representing a majority of the stock thereof shall vote that the same can be done without detriment or injury to the said corporation and its business; and I also will that if at any time before the death of my said wife a majority of the shares of stock of said corporation shall be legally cast in favor of the whole or a part of said legacies being paid, and if my said wife shall also consent to the payment of the same, then so much of said legacies may be paid during the lifetime of my said wife as by such majority vote of stock shall be decided can be paid without detriment or injury to the said corporation and its business, it being my will that such votes can be passed by a majority of the shares of the capital stock of said corporation, irrespective of the numbers of stockholders by whom said majority of stock is held; and all the rest and residue and remainder of my goods, property, and estate of every name and nature I do give, bequeath, and devise to my heirs at law, and their legal representatives, and their heirs and assigns forever."

"New Haven, Conn. May 9th, 1900.

"I hereby direct that my interests in the business of Henry Hooker and Company shall not be divided for ten years from this date, but the income from my estate shall be divided among my legal heirs.

"In witness whereof I do...