Canfield v. Bostwick , 21 Conn. 550 ( 1852 )

Ellsworth, J.

We think there is no error in the decree of probate, ordering the payment of legacies out of the personal estate.

The general rule of law has not been questioned; but it is said, the rule does not apply to this case, because, at the time the will was made, the testatrix had no personal property to pay the legacies with; and besides, after giving the legacies, she gives “the remainder and residue of her real estate.”

A will speaks from the death of the testator, and not from its date, unless its language, by fair construction, indicates the contrary intention. That may be by words of description, or by reference to an actual existing state of things. 1 Jarm. on Wills, 277: hence a devise of personal property, generally, carries all the testator had, at the time of his death. The same would have been true of real estate, had it not been held, that in England, a devise of real estate was considered to be, in the nature of an appointment, which could not be made in relation to future acquired estate. The rule was the same here, until our late statute was passed; but the rule has been abolished here and in England, and there is now no difference between real and personal estate.

The argument of the appellant’s counsel, then, fails, if this will speaks, as we hold it does, from the death of the testatrix, and not from its date.

We discover no records which controul the general principle, that legacies are to be paid out of the personal estate of the testator. In this will, the legacies are given generally. There is no provision exempting the personal property from their payment; and we see nothing in the language used, nor in the dispositions in the will, which induces us to depart from the general rule, and so make the legacies a charge on the real estate. Nor does the fact, that the testatrix had no personal property, when she executed her will, make any difference. She had, when the will is held to speak; and that is sufficient: and besides, after she acquired the property which she had at her death, she might have altered her will, and charged the legacies, contrary to the presumption of law, on a different fund. Perhaps this was her intention; but we cannot presume it was, nor can we let in parol proof to establish it.

But it is said, the form of the residuary bequest of the real estate, proves that such was her intention, and that that appears from the will itself. It is true, the words “remainder and residue of my estate real," are used. But these words are not words of exemption; something more clear and decisive is necessary to do that, and break in upon a well settled principle of law. Indeed, it is much more of a question, had it been pressed upon us, whether, according to the course of decisions, the real estate was charged with the legacies, at all. Gridley v. Andrews, 8 Conn. R. 1. Swift v. Edson, 5 Conn. R. 531. Saunders v. Mathewson, 11 Conn. R. 148. Kightley v. Kightley, 2 Ves. jun. 328. Keeling v. Brown, 5 Ves. 359. Lupton v. Lupton, 2 Johns. Ch. R. 614. Pow. Dev. 122.

The superior court was correct in rejecting the testimony of Jehiel Williams. There is no ambiguity raised on the provisions of the will, to let in such proof. The truth is, this appellant is attempting to deny and controul the will, by parol proof, rather than to explain away any ambiguity created by extraneous circumstances applied to it. He wishes to show, that the will is to take effect from its date, and not from the death of the testatrix; which is no ambiguity of any kind.

It is further said, the judge of probate erred in allowing, a credit to the estate, in the administration account, of forty-four dollars, in an additional inventory. This was made, upon the discovery of a few articles, after the principal inventory had been made and returned. It was not signed by the appraisers; nor had they placed a valuation upon the property in it; or this omission, it is said, should have induced a rejection of the credit. The court find, that this new discovered property has been fully applied, and that there has been no fraud or unfairness; and especially do they find, that the only specific article in the new inventory complained of, is a muff, worth one dollar, seventy-five cents, and that it was sold for two dollars, and duly applied. Now, without deciding whether an additional inventory must, in every case, be made and sworn to, as if it were the primary inventory, in order to save a breach of the probate bond, we are fully satisfied no such objection lies here. The account properly embraces this charge against the administrators; and since the property is now sold, and cannot be appraised by the appraisers, if the appellant is entitled to relief, it must be by a suit on the bond.

It is again said, that in the account, the court allowed a charge against the estate of three items, amounting to two dollars, fifty cents, for services then future, although they were certainly to be rendered, and that this was illegal. We do not so apprehend it. If those charges are to be made, the court would, if it approved of it, then allow them to be made in the final administration account, as a matter of convenience and economy. There was no unfairness in this and no injury to the estate; and nothing is more common than for an administrator, in closing up his account, to charge certain ascertained future disbursements, e. g., as for a monument, taxes, &c. Whatever is left in his hands, by permission of the judge, he is responsible for on his bond.

The remaining objection, to certain fees of the probate judge, we think is well founded and unanswerable; and to that extent, we advise the superior court to reverse the decree. Those fees are fifty cents each, for a finding, on the return of the inventory and order of sale, on the approval of the sale, on the return of notice, and on the return of sale of real estate. These “findings,” as items of distinct charge, are not to be found in the statute bill of fees, and we cannot sanction them. The services of the judge, in this particular, are included in other enumerated services for which fees are allowed. Thus, a finding on the return of inventory, is included in the “receiving and probate of each inventory,” for which a commission of fifteen cents is allowed on every one thousand dollars. So the finding on a return of the order of sale, is included in the “accepting a return of the sale of estate,” for which fifty cents is allowed. The same is true of the remaining charges.

But there is another objection of a most decisive character. In the table of fees, all the fees to be taken by a judge of probate, are specifically put down. Fees for “findings,” are not among them. And then, at the foot of that table, we find this emphatic provision: “The fees herein stated shall include all charges which may be made, by the judges of probate and their clerks, other than such as are allowed by some particular statute.” We are aware, there is a practice somewhat extensive, to charge fees for “findings,” and doubtless, the judge, in this instance, conformed to this practice, and, as he believed, to the law itself; but the charges are none the less incorrect, and cannot be allowed, by this court of dernier resort.

We think the appellant can make the objection on this appeal, since as heir and devisee, he is interested in the administration account.

We advise a reversal of the decree of probate, to the extent of the fees for said findings; and that in other respects, it be affirmed.

In this opinion the other judges concurred, except Hinman, J., who thought, that the question of fees of the judge of probate, did not properly arise in this case.

Judgment affirmed in part, and reversed in part.