Weed v. Hoge

• Decision Date: 13 June 1912
• Citation: 85 Conn. 490,83 A. 636
• Court: Connecticut Supreme Court
• Parties: WEED et al. v. HOGE et al.

83 A. 636

85 Conn. 490

WEED et al. v. HOGE et al.

Supreme Court of Errors of Connecticut.

June 13, 1912

Case Re erved from Superior Court, Fairfield County.

Suit by Edward Franklin Weed and others, executors of Louise C Weed, deceased, against Barbara Louise Hoge and others, for the construction of the will and codicil of the deceased. Cause reserved on an agreed statement of facts for the Supreme Court of Errors. Will construed, and Superior Court advised.

Mrs Louise C. Weed, late of Darien, dying November 19, 1910, left an estate inventoried at $59,130.86. Included in the inventory was a piece of real estate in Darien valued at $35,000, and a bond for $17,000 secured by mortgage upon real estate located on 143d street, New York City, near Riverside Drive. The remaining items of the inventory consist of cash and securities of the appraised value of $6,412.56, the contents of a barn valued at $100, and household furniture and personal effects amounting to a little over $700 as appraised.

By her will and codicil she gave to three friends or relatives her wearing apparel, a silver service, and certain paintings engravings, and photographs. She also made gifts of money amounting to $16,000, to various persons and objects, one of which was a gift of $2,500 to her husband, who survived her. Three other provisions in favor of the husband are made in the instrument. One is contained in the tenth paragraph of the will, as follows: " Tenth, I hereby direct my executors hereinafter named to sell and dispose of all my real estate situated in the state of Connecticut, as soon after my death as possible, and I do hereby give and bequeath one twenty-first (1/21) part of the proceeds of said sale to the Door of Hope Settlement, located at Tappan, New York, and the remaining twenty twenty-first (20/21) part of said proceeds to my said husband, the same to be his absolute property, to him and his heirs forever. And I do hereby authorize and empower my said executors to execute and deliver a proper deed or deeds for the conveyance of said real estate as herein provided for." Another is contained in the fourth paragraph of the codicil, and reads: " Fourth. Whereas, by the tenth clause of my said will, I have left to my husband, Edward F. Weed, twenty twenty-first (20/21) of all my real estate situated in the state of Connecticut, and whereas, since the date of said will. I have sold a portion of my property in said state, now therefore, in lieu of such property so sold. I do give, devise and bequeath to my said husband, Edward Franklin Weed, all the right, title and interest that I may have at the time of my decease in and to certain real estate situated on West 143rd street, near Riverside Drive, in the city and state of New York. consisting of five lots with buildings thereon." The third is a gift of " all the rest, residue and remainder of my personal effects, including furniture, bric-a-brac," etc. The will contains it general residuary clause, and the testatrix's husband and another person are appointed executors without bonds, and with the power of sale of all realty.

No estate specifically bequeathed or devised is needed for the payment of debts or expenses of settlement of the estate.

Galen A. Carter and Warren F. Cressy, both of Stamford, for plaintiffs.

Nehmiah Candee, of South Norwalk, for defendants Annie Sczabo and Julia Kotze. John H. Light, of South Norwalk, for defendant Edward Franklin Weed. Nichols C. Downs, of Stamford, for defendant Barbara L. Hoge.

PRENTICE, J. (after stating the facts as above).

The testatrix left an estate insufficient to satisfy the benefactions contained in her will. Some of her gifts must fail in part. What ones fall into this class, and the extent of the failure which will attend those which do so, depends upon the character of certain gifts in favor of her husband. In so far as these are specific legacies, the husband will be entitled to take without abatement. In so far as they are general, they must share with the other general legacies which the will contains in such reduction as may prove to be necessary. In so far as any of them are to be regarded as devises and not legacies, they must be dealt with in view of section 295 of the General Statutes, which makes all pecuniary legacies, in the event that the personal estate of the testator is insufficient for their payment, a charge on his real estate not specifically described and devised, unless otherwise directed in the will. Certain of the general legatees challenge, for one cause or another, the right which the husband asserts to take without charge or abatement what is in terms given to him, and thus seek to relieve their situation in the distribution of the estate from the consequences which would result to them if such a right were recognized. Questions are thus presented as to each of the gifts to the husband excepting only the pecuniary legacy of $2,500.

The gift contained in the tenth paragraph, and the subject-matter of it, is, through the application of the doctrine of equitable conversion, to be regarded as one of personally and not of realty. The conditions which justify the husband in invoking this equitable principle are clearly present. Emery v. Cooley, 83 Conn. 235, 238, 76 A. 529; Bates v. Spooner, 75 Conn. 501, 508, 54 A. 305; Ritch v. Talbot, 74 Conn. 137, 144, 50 A. 42; Duffield v. Pike, 71 Conn. 521, 525, 42 A. 641.

The only interest which Mrs. Weed had in real estate situated on West 143d street, New York City, was a mortgage interest. This was personal estate by the law of both New York and this state. Trimm v. Marsh, 54 N.Y. 599, 604, 13 Am.Rep. 623; Waterbury Savings Bank v. Lawler, 46 Conn. 243, 245; McKelvey v. Creevey, 72 Conn. 464, 467, 45 A. 4, 77 Am.St.Rep. 321.

It follows, from these conclusions: (1) That the questions presented for determination are to be resolved upon the basis that the several gifts to the husband in dispute are legacies; and (2) that section 295 of the General Statutes is not pertinent to their solution.

The fundamental distinction between general and specific legacies is that the former may be satisfied out of the general assets of the testator's estate without regard to any particular fund, thing, or things, while the latter are gifts of particular specified things, or of the proceeds of the sale of such things, or of a specific fund or a defined portion thereof. In the case of the former, there is no intent on the part of the testator to make a specific disposition of particular assets of his estate as such: in the latter case the intent is that the attempted donation shall be satisfied by the delivery of specific property forming a part of the estate, and so described as to be identified as the subject of the gift, and in no other way. If the specified property is not owned by the testator at his death, the legatee, in the case of a specific legacy, takes nothing. He has no claim upon the general assets. Brainerd v. Cowdrey, 16 Conn. 1, 6; Crawford v. McCarthy, 159 N.Y. 514, 518, 54 N.E. 277; Bradford v. Haynes, 20 Me. 105; Towle v. Swasey, 106 Mass. 100, 108; Page on Wills, § 768. A general legacy has no reference to the actual state of the...