Mitchell v. Mitchell

• Decision Date: 01 November 1900
• Citation: 73 Conn. 303,47 A. 325
• Parties: MITCHELL v. MITCHELL et al.
• Court: Connecticut Supreme Court

47 A. 325

73 Conn. 303

MITCHELL

v. MITCHELL et al.

Supreme Court of Errors of Connecticut.

Nov. 1, 1900.

Case reserved from superior court, Litchfield county; William T. Elmer, Judge.

Suit by David M. Mitchell, executor, against Mary E. Mitchell and others, for construction of a will. Will construed on questions reserved from the trial court.

James Huntington and Arthur D. Warner, for executor. Hugh M. Alcorn, for Mary E. and Benjamin Ward Mitchell.

Robert E. De Forest, for David M. Mitchell and others. George D. Watrous and Harry G. Day, for Helen W. Brooks.

ANDREWS, C. J. The complaint in this case asks the advice of the superior court as to the distribution of the estate of Elizur Mitchell, pursuant to his will, to the several persons claiming thereunder. The questions are reserved for this court. The will was made and duly executed on the 3d day of August, 1885. There was a codicil dated the 19th day of May, 1886. The testator died on the 21st day of May, 1886. Thereafter, on the 22d day of June, 1886, the will and codicil were proved and established in the proper court of probate. The will provided in the first place for the support of the testator's widow. She died on the 11th day of May, 1897. The will, in the next place, provided that the entire estate should be held in trust until—as amended by the codicil —the 1st day of January, 1900, and directed in what way the income of the estate should be disposed of. As soon after the closing of the trust as was practicable, the trustee, who was also the executor of the will, settled his account as trustee and as executor with said court of probate, and the same was approved, accepted, and ordered to be recorded. From this settlement no appeal has been taken. The court found that there was then in the hands of the executor for distribution under the provisions of the will the sum of $375,761.29, of which $8,880 was in real estate. The clauses or sections of said will which direct the distribution of the testator's estate are the eighth, ninth, and tenth, and are as follows: "Eighth. I order, direct, and declare that the said trust shall terminate and come to an end on the first day of January, A. D. 1900, and the principal fund of the whole of said trust estate shall be divided up and distributed as follows, to wit: 1st. I give, devise, and bequeath to my granddaughter Helen M. Winchell one fifth part of the principal of my estate after the closing of the trust. But if Helen M. Winchell shall die before the closing of the trust, and the distribution of the principal of my estate, without issue of her body, said portion that Helen M. Winchell would be entitled to if living I order and direct shall be distributed one half to the children of Lawrence Mitchell equally, and the remaining half to the children of D. M. Mitchell equally, to have and to hold unto them and their heirs forever. Ninth. I give, devise, and bequeath to David M. Mitchell and his children two-fifths of the principal of all my estate, in equal portions, after the closing of the trust. Tenth. I give, devise, and bequeath to Lawrence Mitchell and his children, in equal portions, two-fifths of all my estate, after the closing of the trust, to have and to hold unto them and their heirs forever. But if one or more of the said four children of L. Mitchell shall have died, leaving issue of his or her body, said issue shall receive the same portion that his or her parent would be entitled to if living." No question arises under the eighth section of the will. Helen M. Winchell (now Helen W. Brooks) is living, and is entitled under that section to have one-fifth of the said principal fund distributed to her. Nor is there any question under the ninth section. David M. Mitchell and his children are entitled to have two-fifths of the said principal fund distributed to them in equal portions. Whatever of uncertainty there is arises under the tenth section. At the time the testator died, Lawrence Mitchell was the father of four children, viz. Prank H. Mitchell, Nellie E. Mitchell, Jesse P. Mitchell, and Vivian E. Mitchell. One of these children has since, on the 13th day of June, 1892, died, herself leaving children. At that time the said Lawrence Mitchell was living unmarried. He had been divorced from the mother of his children. Subsequently, on the 3d day of July, 1895, he married Mary E. Mitchell, and by said marriage had a son, Benjamin Ward Mitchell, born on the 25th day of March, 1897.

The questions upon which the advice of this court is asked, are these: (1) Whether at the end of the trust, in 1900, the four children of Lawrence Mitchell named in the sixth section of the said will (they being all his children at the death of the testator) take the whole of the two-fifths of said estate devised to said Lawrence Mitchell and his children in equal portions by the tenth section of the will. (2) Whether Benjamin Ward Mitchell, son of Lawrence Mitchell, deceased, born after the death of the testator, takes any part of the two-fifths of all the estate devised and bequeathed "to Lawrence Mitchell and his children, in equal portions," after the closing of the trust (3) Whether by said tenth section of said will the defendant Mary E. Mitchell, the widow of said Lawrence Mitchell, deceased, has any statutory interest in said two-fifths of said estate. (4) Whether the two-fifths of said estate "devised and bequeathed to Lawrence Mitchell and his children" vested in them as a class at the death of the testator, or at...