Travis v. Wolcotville School Society

• Decision Date: 29 July 1931
• Citation: 155 A. 904,113 Conn. 618
• Court: Connecticut Supreme Court
• Parties: TRAVIS v. WOLCOTVILLE SCHOOL SOCIETY et al.

155 A. 904

113 Conn. 618

TRAVIS v. WOLCOTVILLE SCHOOL SOCIETY et al.

Supreme Court of Errors of Connecticut.

July 29, 1931

Case Reserved from Superior Court, Litchfield County; Earnest C Simpson, Judge.

Suit by Frank M. Travis, administrator de bonis non cum testamento annexo of the estate of James Alldis, deceased, against the Wolcotville School Society and others for the construction of the decedent's will. Case reserved by the superior court for the advice of the Supreme Court of Errors on an agreed statement of facts.

Questions answered.

Charles P. Roraback, of Torrington, for plaintiff.

Thomas F. Wall, of Torrington, for defendant Catherine D. Alldis.

Lucius F. Robinson, Jr., of Hartford, for defendants Elizabeth Hammond Garrett and Samuel M. Hammond, administrator of estate of Kate Dayton Hammond.

John T. Hubbard, of Torrington, and David Cramer, of Litchfield for defendant Brooks Bank & Trust Co., administrator of estate of Mary Alldis Javery.

C Ward Eicher, of Greensburg, Pa., and David Cramer, of Litchfield, for defendant Bar clay-Westmoreland Trust Co., administrator of estate of Catherine Alldis Carothers.

Samuel A. Herman, of Winsted, for defendant Frank M. Travis, executor under the will of Mary L. Alldis.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

HAINES, J.

This proceeding involves the construction and effect of certain paragraphs of the will of James Alldis late of Torrington in this state, who died March 13, 1910, leaving a considerable estate consisting of both real and personal property. The will was executed September 6, 1907, the first paragraph providing for the payment of debts and funeral expenses, and the expense of the settlement of the estate; the second bequeathing to the Wolcotville School Society, a cemetery corporation in Torrington, $500 to be held in trust for the preservation and care of a burial lot; a third paragraph provided that, if the testator had not, during his lifetime erected a monument on his burial lot, the executor should do so at a cost of not more than $2,500. The eighth paragraph was amended by a codicil October 26, 1907, and a different house and lot substituted for that mentioned in the paragraph as first written. Beginning with the fourth paragraph, the will, as thus amended is printed in the footnote.^[1]

The will was accepted, approved, and recorded by the court of probate for the district of Torrington March 23, 1910, and Charles Alldis, a brother of the testator, duly qualified as executor of the will, and died August 16, 1914. On November 18, 1914, this plaintiff, Frank M. Travis, was appointed, by the court of probate, trustee under the terms of the will, and on November 9, 1917, was also appointed administrator d. b. n. c. t. a. of the estate, and he duly qualified and is now acting as such. His final account as trustee has been accepted and approved by the court of probate, and there remains for distribution about $200,000, less the expense of this action, and other proper charges.

The testator left him surviving a widow, Mary L. Alldis, and an adopted son, J. Frank Alldis. The former died July 19, 1929, and the plaintiff Frank M. Travis qualified as executor of her estate. The son survived the testator but died before the testator's widow, himself leaving a widow, Catherine D. Alldis, and two children, Catherine Carothers and Mary Javery. Catherine survived the testator's widow and died about August 26, 1929, and the Barclay-Westmoreland Trust Company qualified as administrator of her estate in the state of Pennsylvania; Mary also survived the testator's widow and died January 14, 1930, and the Brooks Bank & Trust Company of Torrington qualified as the administrator of her estate.

Charles Alldis, the brother mentioned in paragraphs five and eight, survived the testator, but predeceased the testator's widow, and died testate August 16, 1914. He left him surviving no child, but a widow, Alice F. Alldis, and the plaintiff herein has qualified as executor under his will.

Martha Alldis, a sister of the testator, mentioned in paragraph nine, survived both the testator and his widow and died September 30, 1930, and Charles Rorabacher qualified as the administrator of that estate.

Agnes Alldis, now Agnes Alldis Latimer, a niece of the testator, mentioned in paragraph ten, is still living.

Thomas Alldis, a nephew of the testator, mentioned in paragraph eleven, survived the testator but predeceased the testator's widow, and was never married.

Frederick C. Alldis, a brother of the testator, also survived the testator, but predeceased the testator's widow.

Kate Dayton Hammond, mentioned in paragraph twelve, also survived the testator, but predeceased the testator's widow, her death occurring September 22, 1911. She left her surviving, a husband, Samuel Hammond, and one child, Elizabeth Hammond, now Elizabeth Hammond Garrett. Samuel Hammond qualified as administrator of the estate of his wife.

James M. Dayton, mentioned in paragraph twenty, is still living.

Charles Rorabacher and Ella Rorabacher, mentioned in paragraphs sixteen and thirteen, are nephew and niece, respectively, of the testator, and both are still living.

Mary Alldis, mentioned in paragraph fourteen, later Mary Alldis Rorabacher, was a sister of the testator and survived him, but died before the testator's widow, that is on November 3, 1920. She left no estate, but her heirs at law and next of kin were Charles Rorabacher and Ella Rorabacher above mentioned, and the children of a deceased daughter Alice Rorabacher Latimer, who died August 12, 1916, these children being Roland Latimer, Doris Latimer Wheeler, Edith Latimer, and Richard Latimer.

Elvira Mansfield, mentioned in paragraph seventeen, was a sister-in-law of the testator, and survived him, but died December 1, 1909, before the testator's widow.

William Fenn, mentioned in paragraph eighteen, was a brother-in-law of the testator, who also survived him, but died before the testator's widow.

At the time of executing the will, the testator owned 1,000 shares of the preferred stock of the Torrington Company, but at his death he owned 1350 shares, of which 350 were issued to him after the will was executed. All this stock has now been redeemed by the company, and the cash received therefor is in the hands of the plaintiff. We observe that certain of the claimants in their briefs refer to the redemption price of this stock as $27.50 per share, and others, including the plaintiff, refer to it as $31.25 per share, while neither the complaint nor the reservation name the figure. However, the correct price is not necessary to this discussion, since we shall refer to this cash only as representative of the shares about which questions have arisen.

We are asked the following questions:

" 1st. Whether under paragraphs 'Sixth' and 'Seventh' of the will of said deceased J. Frank Alldis, his widow or children have any interest in more than one thousand (1000) shares of the preferred stock of the Torrington Company.

" 2nd. Whether the devise of real estate in paragraph 'Eighth' of the will of said deceased as amended by the codicil to said will vested the title to such real estate in said Charles Alldis, and whether or not the bequest of Four Thousand (4,000) Dollars in said paragraph 'Eighth' should be paid to the Executor of this estate.

" 3rd. Whether the bequest to Agnes Alldis Latimer in paragraph 'Tenth' of the will of said deceased should be paid to her.

" 4th. Whether the bequest to Thomas Alldis in paragraph 'Eleventh' should be paid to Agnes Alldis Latimer.

" 5th. Whether the bequest in paragraph 'Twelfth' of said will to Frederick G. Alldis should lapse one-half to the residuum of the estate and whether one-half the balance should be paid to the Executor or Administrator of the Estate of Kate Dayton Hammond and the other one-half to James M. Dayton.

" 6th. Whether the bequest to Mary Alldis Rorabacher in paragraph 'Fourteenth' should be paid the Executor or Administrator of her estate.

" 7th. Whether the bequest in paragraph 'Fifteenth' of said will should be paid to the Executor or Administrator of the Estate of Alice Rorabacher Latimer.

" 8th. Whether the Estate of Elvira Mansfield or William Fenn have any interest in and to the fund to be distributed by virtue of paragraphs 'Seventeenth' and 'Eighteenth' of said will.

" 9th. Whether the bequest in paragraph 'Nineteenth' to Kate Dayton Hammond should be paid to the Administrator or Executor of her estate.

" 10th. Whether in the pro rata division of said Estate the legatees should be paid a proportionate share in proportion to the total amount of property received by them, or whether it should be pro rated in proportion to the bequests of personal property.

" 11th. Whether under said paragraph 'Twenty-first' the Estate of said Mary Alldis is entitled to any pro rata share of the surplus.

" 12th. Whether under said paragraph the Wolcotville School Society is entitled to any pro rata share of said surplus."

As appears from the foregoing, one of the most important of these questions relates to the proper division of the 1350 shares of the Torrington Company stock. All this stock and all other property of the testator, after the satisfaction of the first four paragraphs of the will, was held under paragraph five in trust for the benefit of the widow of the testator, Mary L. Alldis, until her death July 19, 1929, when the trust terminated and a final distribution was then required under the succeeding paragraphs of the will, the opening words of each of these paragraphs being, " At the decease of my said wife."

The sixth and seventh paragraphs dispose of all the stock of the Torrington Company which the testator...