Stearns v. Stearns

• Decision Date: 30 July 1925
• Citation: 103 Conn. 213,130 A. 112
• Court: Connecticut Supreme Court
• Parties: STEARNS v. STEARNS ET AL.

130 A. 112

103 Conn. 213

STEARNS v. STEARNS ET AL.

Supreme Court of Errors of Connecticut.

July 30, 1925

Case Reserved from Superior Court, Fairfield County; Leonard J Nickerson, Judge.

Suit by Thomas C. Stearns, as executor, against Harold C. Stearns and others, to construe the will of Fannie Nash Stearns deceased. Case reserved on agreed statement of facts. Judgment advised.

Fannie Nash Stearns died on February 13, 1919 leaving a husband, Thomas C. Stearns, to whom she was married December 16, 1891, and as her next of kin the five children who are with the husband parties defendant in this action and leaving a will which was duly admitted to probate. Thomas C. Stearns was named as executor in the will and duly qualified and is the plaintiff in this action. The testatrix at the time of her death owned and possessed personal property of the value of $4,729.06 and real estate of the value of $15,500. The executor has on hand for final distribution all of the real estate and personal property of the value of approximately $1,000. The husband, the two minor children, and also Margaret Stearns, one of the five children, have occupied the homestead of the testatrix since her death. Another of the children with his wife occupied part of the homestead as a separate family unit from the date of the death of the testatrix for a time thereafter. The personal estate of the testatrix is not sufficient after the payment of the debts and charges to pay the cash legacies provided in clause 2 of the will, which is as follows:

" I hereby give, devise and bequeath to each of my children, living at the time of my decease, which may be in being or which may be born hereafter, or to the representative or representatives of any that may be deceased, the sum of five hundred dollars."

Thomas C. Stearns, husband of the testatrix, made no election in writing as to whether he would accept or reject the provisions of the will in lieu of his statutory share as husband. The clause in the will upon which the advice of this court is asked is the third, being the residuary clause and reading as follows:

" I hereby give, devise and bequeath all the rest, residue and remainder of my personal estate remaining after the payment of my debts and the legacies as hereinbefore provided to my husband, Thomas C. Stearns."

The court recited at length certain testimony and then made this finding:

" 14. If such testimony is admissible it is found true, and from the same the following additional facts are found."

We summarize these facts as follows: The testatrix and her husband, Thomas C. Stearns, agreed with each other to make mutual wills, that each would make a will giving a cash legacy to each of their children living or that might be born to them thereafter, and then providing that all of the rest of the estate of each should be bequeathed and devised to each other. Pursuant to this agreement, they went to a scrivener and together instructed him as to this agreement and instructed him to draft mutual wills for the purpose of carrying out this agreement. The testatrix was present with her husband at this interview with the scrivener and the husband did most of the talking, to all of which she acquiesced. Thereupon the scrivener drafted wills for both the testatrix and her husband. Both the testatrix and her husband understood that the wills of the testatrix and her husband included all of their estates, and each believed that by these mutual wills each had given to the other all the residue of their respective estates after the cash legacies to their children. In the course of the conversation with the scrivener, the testatrix, Mrs. Stearns, stated that she wanted to make her will in such a way that after the children were taken care of, her husband should have the balance of her property.

Exhibit B, the will of Thomas C. Stearns, was identical with the will of the testatrix, except that clause third devised and bequeathed the residue to his wife and clause four nominated his wife as executrix.

The questions upon which the advice of the Supreme Court of Errors is desired are as follows:

(1) Whether the testimony offered as appears in paragraph 13 of the finding to support the finding of facts set out in paragraph 14 thereof, including the will of the said Thomas C. Stearns, husband of the testatrix, Exhibit B, is admissible in this action to construe the will of Fannie Nash Stearns.

(2) Whether the said testatrix, Fannie Nash Stearns, disposed of all of her estate by her said will, Exhibit A.

(3) Whether the said testatrix by the third clause of her said will, Exhibit A, disposed of all the rest, residue, and remainder of her estate, both real and personal, to her husband the said Thomas C. Stearns.

(4) Whether by the terms of the said Exhibit A the real estate of said Fannie Nash Stearns became intestate estate.

(5) If the real estate of the said Fannie Nash Stearns became intestate estate because of her failure to dispose of the same under her said will, whether in such event, said husband, Thomas C. Stearns, is now debarred from receiving his statutory share therein as husband because of his failure to file, in writing, in the probate court at Westport, his election not to accept the provisions of said will, Exhibit A, in lieu of his statutory share.

(6) Whether Thomas C. Stearns, husband of said testatrix, should be charged with the reasonable value of the rental of the homestead of the testatrix from the time of her death up to the final accounting and distribution of her said estate.

(7) Whether the son of the testatrix, Harold C. Stearns, should be charged with the reasonable rental of the rooms in the homestead of the testatrix occupied by him while living with his wife as a distinct family unit, separate and apart from his father and the other children on said premises.

(8) Whether said legacies in the second clause of the will, Exhibit A, should become a charge on the real estate of the testatrix if the personal estate is not sufficient to pay such legacies.

(9) Whether the entire personal estate now remaining should be sold to pay any debts and charges against said estate before said debts and charges shall be charged on the real estate of the said testatrix.

(10) Whether each or any of the minor children or any of the heirs at law, who were at the time of their mother's death or have since become of age, are chargeable with reasonable rent when living with the father as one family.

(11) Whether said Fannie Nash Stearns died intestate so far as all real estate owned by her was concerned.

Nehemiah Candee, of South Norwalk, for plaintiff.

John T. Dwyer, of South Norwalk, for defendants Margaret, Frank N., and Thomas C. Stearns.

James T. Hubbell and Ira O. Gregory, both of Norwalk, for defendant Harold C. Stearns, individually and as guardian ad litem of Mary C. Stearns and Milo E. Stearns.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and MALTBIE, JJ.

WHEELER, C.J. (after stating the facts as above).

The husband and two of the children of the testatrix would construe the language of the third clause of the will of Mrs. Stearns, " I hereby give, devise and bequeath all the rest, residue and remainder of my personal estate," as devising and bequeathing all the residue and remainder of the real and personal estate of the testatrix. The husband and the two children of the testatrix contend that the term used in the third clause of the will is equivocal or ambiguous as to the property disposed of therein, and that the intent of the testatrix, the ascertainment of which is the primary end of all construction of every will, can only be known by resort to extrinsic evidence, and that the extrinsic evidence offered was admissible to show the purpose of the testatrix in making her will to be to carry out an arrangement made with her husband that they make mutual wills of a certain character, and that pursuant to that purpose they instructed a scrivener to make such wills, and both the testatrix and her husband understood that the will of the testatrix and that of the husband as drafted by the scrivener and executed by them had conveyed to the other all the residue of their respective estates after the cash legacies to their children. This claim is based upon the rule of construction of wills as expressed in Wigram's fifth proposition:

" For the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by this will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will." Wigram on Wills, pp. 12-19.

Quoting and approving this proposition in Thompson v. Betts, 74 Conn. 576, 579, 51 A. 564, 566 (92 Am.St.Rep. 235), we add this comment:

" In short, the court may, by evidence of extrinsic facts other than direct evidence of the intention of the testator, put itself as near as may be ‘ in the condition of the testator in respect to his property, and the situation of his family,’ for the purpose of rightly understanding the meaning of the words of his will."

The contention is made that the term " personal estate," as used in the will before us, is an ambiguous or equivocal term, and that the court may receive extrinsic evidence for the purpose of enabling it to determine the quantity of interest given by this term. " Personal estate" is an ambiguous term. It may be used to...