Sklar v. Sklar's Estate

• Decision Date: 11 March 1975
• Citation: 357 A.2d 900,168 Conn. 101
• Court: Connecticut Supreme Court
• Parties: William S. SKLAR et al. v. ESTATE of Julius SKLAR.

Page 900

357 A.2d 900

168 Conn. 101

William S. SKLAR et al. v. ESTATE of Julius SKLAR.

Supreme Court of Connecticut.

March 11, 1975.

Julius B. Kuriansky, Stamford, with whom, on the brief, was Henry L. Goldstein, Stamford, for appellants (plaintiffs).

Herbert L. Cohen, Bridgeport, with whom, on the brief, was Irving J. Kern, Bridgeport, for appellee (defendant).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ. HOUSE, Chief Judge.

This is an appeal from a judgment of the Superior Court denying the plaintiffs' appeal from an order and decree of the Probate Court allowing a decedent's widow $2,000 per month for a period of one year to be paid out of the decedent's estate as a widow's allowance.

Julius Sklar, a resident of Stamford, died on December 3, 1971. His will was admitted to probate in the Probate Court for the district of Stamford on January 4, 1972. The plaintiffs, William S. Sklar and Betty S. Tarr, are the sole issue of the decedent's first marriage and the executors and sole residuary devisees and legatees under his will. Ruth M. Sklar, hereinafter referred to as the defendant, is the decedent's widow by his second marriage. On January 21, 1972, she filed an application with the Probate Court for the district of Stamford for an allowance of $2000 per month out of her husband's estate for her support. That court entered an order on May 17, 1972, granting the defendant an allowance for her support from and out of her husband's estate of $2000 per month for a period of twelve months from the date of his death. The cause of the present litigation is the existence of that order and an article in Sklar's will (article eighth) which stated: 'The provisions made herein for my beloved wife, Ruth M. Sklar, are in lieu of all statutory rights to which she would otherwise be entitled in my estate, including her right to any statutory widow's allowance.' At the time of the hearing before the Probate Court on the application for the widow's allowance, the defendant had not elected to take either under or against the will. Subsequent to the date of the probate hearing, the time allowed for making an election pursuant to § 46-12 of the General Statutes expired and the finding of the court discloses that the defendant 'has not elected to take against the Will.'

Among the reasons for their appeal to the Superior Court from the order of the Probate Court granting a widow's allowance, the plaintiffs claimed that no allowance should have been granted to the defendant 'in view of the explicit language of the Will,' that because of that provision she should have been obliged to make an election to take either under or against the will before any order for a widow's allowance was made, that any allowance, if granted, should be made a charge upon the share she would receive from her husband's estate, and that the defendant had failed to establish the necessity for a widow's allowance in this case.

In denying the plaintiffs' appeal from the order of the Probate Court, the Superior Court concluded (a) that under the provisions of § 46-12 of the General Statutes the defendant, as a surviving spouse, was given the right to elect to take either under or against the will, and, in addition thereto, the right to apply to the Probate Court for a widow's allowance for support, (b) that the provisions of article eighth of the decedent's will did not preclude the Probate Court from granting a widow's allowance, and (c) that the allowance as made was reasonable and justified by the inventory and actual value of the estate. The plaintiffs claim that the court erred in reaching these conclusions, in overruling their claims of law, and in rendering judgment for the defendant. The first two assignments of error essentially raise the same issues which are stated in the plaintiffs' brief to be: '1) Whether the appellee-defendant was entitled to a widow's allowance when the decedent's Will specifically provided that the other provisions in the Will were 'in lieu of all statutory rights to which she would otherwise be entitled in my estate, including her right to any statutory widow's allowance.' 2) Whether a widow was obliged to make her election to take against the Will in order to qualify for a widow's allowance under § 46-12 of the General Statutes in view of the above exclusionary language.'

The lengthy provisions of § 46-12 of the General Statutes as it read at the time of these proceedings insofar as they are relevant here may be briefly summarized. They allow a surviving spouse an election to take according to the provisions of the deceased spouse's will or, in the alternative, to elect to take a fixed portion of the deceased spouse's estate, and provide that 'such election shall be made in writing signed by the party entitled to make the same and lodged with the court of probate before which such estate is in settlement, within two months after the expiration of the time limited for the exhibition of claims against such estate; and, if not so made, such person shall be taken to have accepted the provisions of the will and shall be barred of such statutory share.' The statute further provides that '(a) surviving spouse shall also, when in the opinion of the court of probate it is necessary, be allowed a reasonable sum from such estate for his or her support and for the support of his or her family during the settlement of the estate; but, in that case, such person shall not take his or her statutory share until the expiration of the time for which such allowance is made.'

It is the clear import of the language of § 46-12 that regardless of what election is made by the surviving spouse-to take under the will or to take a statutory share-that spouse shall 'also,' when in the opinion of the court of probate it is necessary, be allowed a reasonable sum for support during the settlement of the estate. As this court observed in Baldwin v. Tradesmens National Bank, 147 Conn. 656, 661, 165 A.2d 331, 333: "It was the practice, from a very early time in our history, . . . for the court administering the estate of a deceased person to make such allowance out of the estate as it deemed proper for the support of the widow . . . of the deceased during the settlement of the estate, and this practice became a part of our common law . . ..' Havens' Appeal, 69 Conn. 684, 698, 38 A. 795, 799.' 'The allowance to a widow for her support is in the nature of a continuance of the support after the husband's death which he, or his estate had furnished her before his death. But for it the widow and family, even where there is ample estate, might be subjected to great inconvenience and perhaps brought into an extremity. There is at first no legal certainty as to the condition of the estate, and until that certainty is arrived at by the completion of the settlement of the estate, the widow and family keep on, ordinarily in the home where they have lived, supported by a reasonable allowance from the estate.' Baker's Appeal, 56 Conn. 586, 588-89.

In holding that an allowance ordered by a Probate Court for a widow's support pending settlement of her deceased husband's estate was not subject to attachment by her creditors, this court, speaking by Pardee, J., had this to say in Barnum v. Boughton, 55 Conn. 117, 118-19, 10 A. 514, about such allowance: 'Upon the death of a man the law takes instant possession of his entire estate in the interest of an orderly appropriation thereof, first, to the payment of certain preferred debts; secondly, of the remaining debts in equal proportions; thirdly, for the payment of specific legacies; the remainder to be divided among the heirs. If there are wife and children surviving, presumably they are without means for providing themselves with instant food and fuel, except as they may claim these necessaries from the hand of public charity; and must so continue until the law has completed the work of division; a work of statutory necessity, spreading over a considerable space of time. In the interest of humanity and for the prevention of what in almost every case would be an unseemly and unnecessary demand upon public charity, the law provides that the probate court may make such temporary allowance to the widow or children as shall supply their daily recurring needs. Of course, if it shall finally result that the estate is not equal to the debts, these last are to bear the burden of the temporary necessities of the family. This is no hardship, because every man knows when he gives credit to another that death may overtake the debtor when he is unable to pay and that a portion of such assets as he may have will be expended for the temporary support of his wife and children. It is...