Union & New Haven Trust Co. v. Bartlett

• Decision Date: 27 July 1923
• Citation: 99 Conn. 245,122 A. 105
• Parties: UNION & NEW HAVEN TRUST CO. ET AL. v. BARTLETT ET AL.
• Court: Connecticut Supreme Court

122 A. 105

99 Conn. 245

UNION & NEW HAVEN TRUST CO. ET AL. v. BARTLETT ET AL.

Supreme Court of Errors of Connecticut.

July 27, 1923

Appeal from Superior Court, New Haven County; John W. Banks, Judge.

Suit by the Union & New Haven Trust Company, as trustee, and others as executors, under the will of Justus S. Hotchkiss deceased, against Stephen S. Bartlett, administrator of the estate of Fanny W. Kingsbury, deceased, Edmund Winchester Kingsbury, Grace Clark, and others to determine right to control of trust fund. Judgment for defendants Kingsbury and another, and defendants Clark and others appeal. No error.

Beach J., dissenting.

On November 12, 1915, Justus S. Hotchkiss of New Haven died leaving a will which was duly probated, and contained in article IV the following bequest:

" I give to the Union & New Haven Trust Company one hundred thousand ($100,000) dollars, in trust, to hold for the use of Fanny W. Kingsbury for her life, paying her the net income therefrom in each year in quarterly payments, so far as reasonably practicable, and after her decease paying her sister, Maud L. Kingsbury, said net income in a similar manner, and subject to such life charges I give said fund absolutely on the death of the survivor of said sisters, as Fanny W. Kingsbury may in writing or by will appoint, and in default of such appointment to those who would be entitled to receive it, if she died intestate and were then the absolute owner thereof."

The plaintiff Union & New Haven Trust Company was named in the will as trustee of the above-described trust, and duly qualified as such trustee and is now acting in that capacity and Simeon E. Baldwin, James S. Hemingway, and Samuel Hemingway were named as executors of the will, and duly qualified and are now acting in that capacity.

Fanny W. Kingsbury died on September 28, 1919, a resident of Massachusetts, leaving a will dated February 20, 1905, and a codicil also dated February 20, 1905, which was duly admitted to probate in Massachusetts. Charles B. Appleton was named as executor of this will but declined to serve, and the defendant Stephen S. Bartlett was duly appointed administrator with the will annexed, and duly qualified and is acting in this capacity. In the second clause Miss Kingsbury specifically exercised a power of appointment given her by the will of a deceased aunt in favor of her brother and sisters, and in the fourth clause she disposed of the residue as follows:

" Fourth--All the rest, residue, and remainder of my property, real, personal and mixed, I give, devise and bequeath to, and all powers of appointment vested in me and not hereinbefore exercised, I exercise and appoint in favor of, those of my said brother and sisters who shall be living at my decease, to have and to hold him, her, or them, and their heirs and assigns to their own use and behoof forever."

Miss Kingsbury was a woman of education and intelligence. There was found in a bureau drawer in her home after her decease, the instrument (Exhibit D) in her handwriting in pencil, and its major part was signed by her, while on the page following the page of the signature appeared an attestation clause in due form for a will, but without the signature of any witness to the signature of Miss Kingsbury. Underneath the attestation clause appeared clause 11, being an appointment of executors, and followed by clause 10, which contained a specific bequest to the sister of Miss Kingsbury of moneys on deposit in two banks " after all bills against my estate have been paid from these accounts." Exhibit D, dated March 4, 1919, is in form a complete draft of a will, excepting the signatures of the witnesses to the attestation clause, and contains one legacy to Grace Clark of $10,000, one to Elinor W. Crocker of $5,000, and one to Annie G. Pettimgill of $1,000, with the notation on the margin:

" The following three legacies are to be paid from the property left to me in trust by Justus S. Hotchkiss of New Haven."

And also the following clause:

" 6. Upon the death of my sister Maud L. Kingsbury, I give the remainder of the property, left to me in trust by Justus S. Hotchkiss of New Haven, to my sister Marion K. Appleton, of Brookline, and to my brother Edmund W. Kingsbury of Framingham, to be divided equally between them."

These three legatees named in Exhibit D survived Miss Kingsbury, are now living, and were unrelated to her or to Justus S. Hotchkiss.

Maud L. Kingsbury, referred to in the fourth paragraph of the will of Justus S. Hotchkiss and sixth clause of the will of Miss Kingsbury, died April 1, 1921, unmarried, without issue, and domiciled in Massachusetts, and her will was duly admitted to probate there. Marion K. Appleton, wife of Charles B. Appleton, referred to in the will of Miss Kingsbury, died June 24, 1919, prior to the decease of Miss Kingsbury, being domiciled in Massachusetts, and leaving no issue surviving her but leaving her said husband and a brother, Edmund W. Kingsbury, a defendant herein, and two sisters, Miss Kingsbury and Maud L. Kingsbury. Charles B. Appleton was duly appointed administrator of her estate August 25, 1921, and duly qualified and is now acting in this capacity.

Another penciled paper writing purporting to have been written and signed by Miss Kingsbury, dated 1916, was found among her effects after her death, and contained the erased words: From the fund of the trust fund held in trust for me by the Union & New Haven Trust Company," and another portion of a clause was crossed off.

After the death of Maud L. Kingsbury, April 1, 1921, the plaintiff, the Union & New Haven Trust Company, as trustee, and the said executors under the will of Justus S. Hotchkiss, brought this action claiming an adjudication of various questions made by certain of the defendants, which are stated in the complaint as follows: (a) Whether said trust fund was validly appointed by said Fanny W. Kingsbury by the paper writing dated March 4, 1919 (Exhibit D). (b) If said paper was a valid appointment of said trust fund, whether such appointment was effective as of the date of the signing of said paper writing, or as of the date of the death of said Fanny W. Kingsbury. (c) If said paper writing was a valid appointment effective as of the date of the death of said Fanny W. Kingsbury, whether the appointment of a part of said trust fund to said Marion K. Appleton is operative, or whether such share is to go as in default of appointment. (d) Whether said trust fund was validly appointed by said Fanny W. Kingsbury by her last will dated February 20, 1905 (Exhibit C) which will was executed prior to the death of said Justus S. Hotchkiss, and prior to the execution of the will of said Justus S. Hotchkiss. (e) If said trust fund was validly appointed by both said paper writing and said will of Fanny W. Kingsbury, as to which appointment takes precedence and is effective, and who is entitled to said trust fund thereunder. (f) Whether there was any valid appointment by said Fanny W. Kingsbury in writing or by will of said trust fund, and, if not, what person or persons are entitled thereto in default of such appointment. (g) What person or persons are now entitled to said trust fund and in what amounts and shares.

The superior court held that the trust fund in question had not been validly appointed by Exhibit D, and that it was unnecessary to determine whether it was validly appointed by the residuary clause of Fanny W. Kingsbury's will, dated 1905, because her brother Edmund W. Kingsbury, and the executor of his sister, Maud L. Kingsbury, were entitled to the entire fund in equal portions, either under the will of Mr. Hotchkiss or under the will of Miss Kingsbury.

J. Dwight Dana, of New Haven, for plaintiff.

George E. Beers, of New Haven, and Richard B. Stanley, of Boston, Mass., for appelants Clark et al.

James E. Wheeler, of New Haven, for appellant Appleton.

Lewis L. Field, of New Haven, for appellee Bourne.

George D. Watrous and George D. Watrous, Jr., both of New Haven, for appellee Kingsbury.

Eliot Watrous, of New Haven, for appellee Bartlett.

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

Under article IV of the will of Justus S....