Blakeslee v. Pardee , 76 Conn. 263 ( 1903 )

The gifts of personalty contained in this will and codicil — the residuary clause aside — consist of one specific request of chattels, several pecuniary legacies, and one general legacy not pecuniary. Concerning the specific bequest, which is contained in the first paragraph of the codicil, no question arises. In order to determine the amount of the pecuniary legacies it is necessary to inquire whether or not the gift made in the sixth paragraph of the will is an operative one. The death of the life tenant prior to the testator's did not invalidate the gift over. Healy v. Healy,70 Conn. 467, 471. The subsequent execution of the codicil without revocation of the provisions of this paragraph indicates, rather than otherwise, the testator's intention that the gift should stand. The paragraph, therefore, contains a valid pecuniary legacy of $6,000, making the total of such legacies $28,200.

The general legacy not pecuniary is one to the testator's wife of "two thirds of all the personal property of whatever kind of which I may die possessed." An important question is presented as to the measure of this bequest. The widow claims that she is entitled to two thirds of the gross amount of the personal estate; the residuary beneficiaries, that she is only entitled to two thirds of the amount of personal property remaining after the payment of all claims and the expenses attending the settlement of the estate and the satisfaction of all the legacies. We think that she is entitled to two thirds of the net personal estate; that is, two thirds of the personal estate less the amount of claims presented and allowed and the expenses of settlement. A gift "of all of which one may die possessed" carries only the net amount of the estate. In like manner a gift of two thirds carries two thirds of the same total. There is no peculiar significance to be attached to the testator's choice of words. In their connection they can have no other effect than would the words "of all my personal estate" used in their stead. Legacies stand in a very different relation to the estate from debts and expenses of settlement. The latter are a charge upon the property left by the deceased, and until their amount is ascertained the amount of the estate for the purposes of division cannot be determined. Legacies are parcels of the distributable estate. Their amount may be expressed in precise figures, or they may be determinable upon an established basis of computation. In either event they comprise a part of the estate which is under division.

It is urged, however, that the closing paragraph of the codicil requires that the provisions of the codicil be first executed before the will begins to operate, with the effect that the personal estate with respect to which the will speaks is the personal estate less the amount of the legacies in the codicil. The language of this paragraph of the codicil is singularly obscure, and the intention sought to be expressed peculiarly uncertain. Fortunately, however, there is no need to seek to fathom the mystery, since it is quite clear that the extreme construction indicated is unwarranted either by the language or apparent intention. Possibly the testator intended to give a priority to the gifts in the codicil, so that they should be paid in full in any event, and to confirm the will as modified. Quite certainly he intended to do nothing more favorable to the claim of the residuary beneficiaries. As the gifts contained in the codicil are all to be paid, the obscure phraseology has no further present interest.

This method of ascertaining the amount of the widow's share of the personalty, under the first paragraph of the will, entitles her to approximately $37,000, if we are correct in our calculations. This amount, together with the amount of the pecuniary legacies, gives a total in excess of the personal estate. We have next to consider the results attending this situation.

The pecuniary legacies are by statute charged upon the real estate, of which the testator left sufficient not specifically devised to more than satisfy all the legacies of whatever character. General Statutes, § 295. "Where a testator has charged one or more legacies upon the real estate, and other legacies are not so charged, if the personal estate proves insufficient to pay them all, the legacies charged on the real estate shall be paid thereout; or if they have been paid out of the personal estate, the other legacies, as to so much, shall stand in their place as a charge upon the land." Aldrich v. Cooper (note), 2 Leading Cases in Equity, 228, 242; Hanby v. Roberts, Amb. 127; Masters v. Masters, 1 P. Wms. 421; Bligh v. Darnley, 2 id. 619;Allen v. Allen, 3 Wall. Jr. (U.S.C. C.) 289. This recognized principle renders it unnecessary to inquire as to what priorities there might be between the several legacies, and as to whether or not that to the widow was one with which the real estate stood charged. The general legacy to the widow and the several pecuniary legacies are all payable out of the estate, the proceeds of the sale of real estate not specifically devised — in so far as the same may be needed to supply the deficiency of personal property — being used for that purpose.

The widow is confessedly entitled to the real estate specifically devised to her in the first paragraph of the codicil.

This devise is cumulative to that contained in the second paragraph of the will, which is to be construed as one third in value of all the testator's real estate, including that specifically devised in the codicil. This result flows alike from the natural meaning of the language employed, the presumption of law, and the apparent intention of the testator.Hollister v. Shaw, 46 Conn. 248; Wainwright v. Tuckerman,120 Mass. 232; Dickinson v. Overton, 57 N.J. Eq. 26;Manifold's Appeal, 126 Pa. 508.

In determining, however, the amount of the testator's realty for the purpose of the above computation, there should not be included in the total that which the provisions of the will require to be converted into money and used as personalty in the satisfaction of legacies. The real estate, within the meaning of this part of the will, is to be regarded as that and that only which by the terms of the will pass as realty. The testator's intention would quite certainly be violated upon any other construction. He evidently meant that his widow should have the premises specifically devised and one third of what real estate remained to be divided. He could scarcely have intended that the real estate which should be needed to satisfy debts and legacies, including in the last the major part to the widow, should be used again for her benefit by increasing the total upon the basis of which the proportionate share which should come to her in the form of realty should be determined. The amount of real estate required to be sold and the proceeds thereof used for the satisfaction of legacies is not, therefore, to be included in this total.

Paragraphs second and third of the codicil were clearly intended to cut off Mrs. Skilton and George A. Barnes — the former in any event, and the latter in the contingency named — from any participation in the estate beyond the two small legacies left them. As a result, their brother Harry is entitled to receive the share to which their mother, if living, would be entitled under the fifth and sixth paragraphs of the will. This result is in harmony with the general scheme of equal benefactions to the brothers and sisters and of the substitution of children for any deceased brother or sister, thus preserving the equality among the several stocks. The removal of Mrs. Skilton and George, by the direction of the testator, from the class of persons entitled to take in the event of Elizabeth Barnes' death, was to the same effect as their removal by death would have been. Bolles v. Smith, 39 Conn. 217, 218.

The Superior Court is advised: —

1. That the gift of $6,000, as contained in the sixth paragraph of the will, is valid.

2. That the widow, under the first paragraph of the will, takes two thirds of all the personal estate less the amount of the debts and expenses of settling the estate.

3. That if the personal estate remaining after the payment of debts and expenses of settlement proves insufficient to pay the general and pecuniary legacies, proceeds of the sale of real estate be used to supply the deficiency.

4. That the widow is, under the second paragraph of the will, entitled to take, in addition to the lands specifically devised to her in the codicil, one third of all the real estate, said property specifically devised to her being included in the total used as the basis of calculation, and so much of the realty as is required for the satisfaction of legacies being excluded.

5. That Harry E. Barnes is entitled to receive the full share which his mother, Elizabeth Barnes, if living, would receive under the provisions of paragraphs fifth and sixth of the will.

No costs will be taxed in this court in favor of any party.

In this opinion the other judges concurred.