Bridgeport Trust Co. v. Fowler

Curtis, J. It appears from the record that this estate is one in which the personal estate is ample to meet all cash legacies, indebtedness and expense of administration, and further, that all the residue of the estate real and personal is given to trustees in trust to pay the income therefrom without discrimination between income from real or personal estate to certain persons with remainder over. Questions one, two, three and ten relate to the payment of certain taxes. The will, paragraph eighteen, provides as follows: “Article Eighteenth. It is my will that any and all inheritance or other taxes charged upon my estate or any legacies or devises hereby given be paid by Executor out of the residue of my estate, and be not deducted from the amounts of the respective legacies and devises.” The tax levied by the city of Bridgeport on the list of 1923, referred to in question one, and the Federal income tax referred to in question ten, are clearly *328 included within the phrase “other taxes” in this article and should be paid under this paragraph. Under the conditions of this estate, the provision that taxes shall be paid “out of the residue,” has the effect of emphasizing the testatrix’s intent that her estate shall deal with taxes as a charge against the estate, payable primarily out of the personal assets, as ordinary debts are paid. In accord with the law of this State, the real estate is to be exonerated from the mortgage debt of $80,000, which was placed thereon in substitution for a mortgage that existed at the testatrix’s death. The mortgage and interest thereon should be paid as any antemortem debt. There is no provision in the will indicating that this indebtedness, principal and interest, is to be otherwise discharged. On the contrary, article first of the will provides: “I direct that my just debts and funeral expenses be paid by my Executor hereinafter named.” And this indicates an intent that the mortgage debt be so paid. In Beard’s Appeal, 78 Conn. 481, 484, 62 Atl. 704, we say, as to a mortgage indebtedness on certain real estate and the duty of an administrator to pay it: “His authority proceeded from two things: the fact . . . that the lands were subject to this mortgage indebtedness, and the rule of law that any such indebtedness must be discharged from the general personal estate, if it be adequate for that purpose and can be used without prejudice to the rights of unsecured creditors. This fact and this rule made it his duty to pay both the interest and the principal due upon” the inortgage note. There was only one way that the real estate could be exonerated from the liability of the mortgage securing the annuity obligation to Mrs. Charlier, and that was by the payment of $100,000 in accord with the *329 agreement between the testatrix and Mrs. Charlier, recited in the statement of facts. That course was not one that the executor was required to pursue. It is an administrative question in the settlement of the estate, whether or not the executor should adjust this obligation and exonerate the real estate by the payment of this $100,000, or should purchase an annuity contract to meet the payments to Mrs. Charlier under the contract, or should reserve funds sufficient to enable it to meet these payments under all contingencies; the life tenants and remaindermen could be consulted. The obligation to Mrs. Charlier consists of a series of indebtedness of $1,000 each, payable quarterly for an indefinite period. These are ante-mortem debts for the payment of which an adequate amount of the corpus of the estate must be appropriated. If such a sum is maintained by the executor for such purpose, the income from that fund should also be used for such purpose, and any balance at her death would become a part of the residue. As to question nine, asking what disposition is to be made of the gross income which arose from the personal property sold or used to pay debts and administration expenses, the rule stated in Allhusen v. Whittell, L. R. 4 Eq. Cas. 295, 303, to the following effect, governs: “It is necessary to ascertain what part of the personal property, together with the income of such part for a year, would be wanted for the payment of debts, legacies and other charges, during the year, and the proper and necessary fund must be ascertained by including the income for one year which must arise upon the fund which may be so wanted.” Williams on Executors, Vol. 2, p. 699; Williamson v. Williamson, 6 Paige (N. Y.) 298. It is obvious that an executor can only approximate *330 the sum that will be required for the payment of debts and expenses of settlement, before the time limited for the presentation of claims has expired. Also the claims presented may bear interest. The income from the fund used to pay debts may approximate the interest accumulating on the debts. Under this rule the income from such fund, if not used for the payment of debts, becomes a part of the corpus of the estate, replacing a part of the corpus taken in excess of the actual requirements. As to question seven, the annuity obligation should be reckoned under our law, for the determination of the succession or inheritance tax due the State, at such sum as would purchase an annuity contract to pay $1,000 quarterly to Mrs. Charlier, during life from the death of the testatrix; the agreed facts fix this sum at $56,850. As to question eight: The bequests made in articles eleven, twelve, thirteen and the codicil of the will bear interest from the date of the death of the testatrix; even where not specifically so provided, the law of the State provides. Webb v. Lines, 77 Conn. 51, 58 Atl. 227; Hewitt v. Hicock, 96 Conn. 176, 179, 113 Atl. 172. The bequest in article eleven, in trust for Mrs. Fowler, provided that the bequest of $6,000 should be paid by any six $1,000 five per cent bonds that the trustee might choose; this we deem as expressing an intent that Mrs. Fowler should receive the income from such selected bonds from the date of the testatrix’s death. As to the other trust funds created by these paragraphs, since the personal property of the estate was managed as an entirety during the first year, the income earned by the personal estate as a whole is treated under our law as the rate of income earned by *331 each fund. Webb v. Lines, 77 Conn. 51, 58 Atl. 227; Fanning v. Main, 77 Conn. 94, 58 Atl. 472. This rate is conceded to have been 4.87 per cent. Therefore the other trust funds involved in question eight carry interest at that rate from the death of the testatrix. The answers to the questions presented by the reservation sufficiently appear in the foregoing discussion. The Superior Court is advised to render judgment accordingly. No costs to either party will be taxed in this court. In this opinion the other judges concurred. .