Walker v. Upson , 74 Conn. 128 ( 1901 )

The testator provided for the disposition of the greater part of his property "when" his daughter Nellie should come of age, or upon her death, should that occur during her minority. He also provided for the simultaneous disposition of the residue "in case" his three children should "all then be living." The death of his son before him presented a different case, as to which the will is silent. That, knowing that Nellie was of age and Henry dead, the testator allowed his will to remain unaltered, cannot, even with the aid of General Statutes, § 541, serve to turn a contingent bequest into an absolute one. One case and one case only was provided for, and that was the survival of his three children at the time fixed for the distribution of the principal of his estate. This time, Nellie having previously come of age, was that of the testator's death, when the will first spoke. As but two of his three children were then living, his residuary estate is intestate.

The dispositions in favor of the widow were plainly intended to be in lieu of dower. Bennett v. Packer, 70 Conn. 357. Her acceptance of them also debars her from claiming under General Statutes, § 630, any share in so much of the personal estate as is intestate. One who chooses to accept a benefit under a will must renounce every claim inconsistent with the accomplishment of the intent manifested by its provisions. The will now in question shows a general intent to divide the principal of the estate equally between the testator's widow and his descendants. There is nothing to indicate that he contemplated partial intestacy. It is more probable that he thought that the death of any child would simply hand his share over to his issue, under the statute to prevent lapses, to which reference has been made. The particular provision in favor of his children having failed, it would be inequitable to permit the executors of the widow to put forward a claim never made by her, and give to her election to take under the will the effect of increasing her estate, contrary to his general intent, at the expense of the natural heirs. Leake v. Watson, 60 Conn. 498, 513.

The testator invested his widow with a power of selection as to what should constitute her half of his estate. There is nothing to take this provision out of the general rule that a power is personal, and can be exercised only by him to whom it has been specially confided. The widow having made but a partial division between the share left to her and that intended for the children, distributors must be appointed to complete it. This is within the powers of the Court of Probate under the equity of General Statutes, § 558. The valuations given in the inventory will not control in such distribution. Whatever may remain after the payment of the two pecuniary legacies belongs, as intestate estate, to the testator's surviving descendants, per stirpes.

The Superior Court is advised to render judgment in conformity to the foregoing opinion.

No costs will be taxed in this court.

In this opinion the other judges concurred.