Boardman's Appeal from Probate

Foster, J. This claim of Mrs. Boardman against the estate of her deceased husband grows out of an ante-nuptial contract entered into by them on the 24th of July, 1857, a few days before their intermarriage. The construction of that contract is of course directly involved; and in connection with it we shall doubtless find it necessary to examine the last will of Mr. Boardman, as that contains devises and bequests for the benefit of his widow. The parties were married on the 28th of July, 1857. lie was then sixty-four, and she thirty-eight years of age. He had an estate of nearly or quite half a million of dollars; and she a patrimony of about six thousand dollars. He died on the 27th of August, 1871, and his will bears date on the 19th of March, 1870. The inventory of his estate is $1,110,-190.05. By the ante-nuptial contract above referred to Mr. Board-man conveyed to a trustee two hundred shares' of stock in the Delaware & Hudson Canal Company, one hundred and twenty shares of stock in the Bank of New York, and one hundred shares of stock in the Market Bank of,the city of New York, to be held in trust, in the words of the instrument» “ for the sole use and benefit of said Lucy [afterwards Mrs. Boardman] during her life; and after her decease, to be subject to such disposition as the said Lucy, by will, or by any proper appointment in writing, may direct.” The agreement then proceeds as follows: “ It is further agreed and settled that the property and estate now appertaining and belonging to the said Lucy shall be and remain hers, to her own sole and separate use and disposition, to all intents and purposes. It is also further understood and agreed, in consideration of the premises, that in the event of the demise of the said William, leaving the said Lucy surviving, she will not claim or receive any dower in the real estate of the said — 196 — William, wherever situated, nor any distributory share in his personal property, except as the same may bo devised or bequeathed to her in the last will and testament of the said William; the provision in this marriage settlement being intended and accepted in lieu and in full of dower, and of widow’s statutory rights, in both the real and personal property of the said William W. Boardman.” The dividends on these shares of stock inf these several corporations, accruing after the date of this contract, were received by Mr. Boardman up to the time of his death, when they amounted, with interest, to between eighty and ninety thousand dollars. Whether or not his estate shall be held liable to pay these dividends to Mrs. Boardman, is the question to be decided. The case has been very ably, indeed exhaustively, argued. If the first claim on the part of the appellant be well founded, the question is shortly disposed of. That claim is, that the right to the income from these stocks being in Mrs. Boaidman at the time of the marriage, that right thereupon became vested in her husband, during his life, by force of the statute ; .that his right to these dividends was absolute and no valid claim for them can exist against his estate. We must dissent altogether from this proposition. The , language of this contract' is clear and explicit. Its object and intent are too apparent to be mistaken; and the committee finds that it was executed, “ as and for a valid and binding agreement upon the parties, for the uses and purposes therein mentioned.” Out of Mr. Boardman’s very ample estate he carved this comparatively small portion, and conveyed it to a trustee to be held for the sole use and benefit of her who was to become his wife, during her life; giving her the power of disposing of the same by will, or by any proper appointment in writing. This was received and accepted in lieu of dower, and in full discharge of all claims to any distributory. share in his estate, should she survive him; which,' in the ordinary course of nature, was certainly to be expected. We can have no doubt but that the income of this property — 197 — belonged to Mrs. Boardman as lier sole and separate estate. Such is tlie reading of the contract, which does not require, and scarcely admits of construction. Bell on the Law of Property of Husband and Wife, 473, 475. The situation of the parties and the subject matter of the transaction may very properly be brought into view to aid in determining the legal effect of a contract. Having abundant means, which were rapidly increasing, Mr. Boardman was no doubt desirous of making adequate provision for his wife in the event of his death, and at the same time of leaving his estate unincumbered by any claims for dower. So' he was induced to make this settlement. Mrs. Boardman, in accepting it, even with its probable accumulations, was manifestly giving up a large portion of what the law, in the event of his death, she surviving, would pronounce hers. In the case of Deming v. Williams, 26 Conn., 226, this court recognized a distinction between a gift or a conveyance to a wife by a stranger and by a husband. Words of exclusiveness are necessary in the case of a stranger; otherwise, the.unity of husband and wife would carry to the husband alone a gift of personal property made to the wife ; but when the husband himself makes the conveyance, the wife takes a sole and separate estate without express words to that effect. As the parties contemplated immediate marriage, this settlement should be construed in light of this principle. • The case of Massey v. Rowen, Law Reps., 4 Eng. & Irish Ap. Cas., 288, one of the most recent cases, perhaps the most recent decided in the House of Lords, where the doctrine of separate estates was very fully investigated, holds that the word “ sole ” has not a fixed, technical meaning in a will; but that it may have in a marriage settlement. The doctrine of this case strongly supports, as we think, the construction which gives Mrs. Boardman a separate estate under this contract. To claim that, by virtue of his righfs as her husband, Mr. Board-man was entitled to the dividends on these stocks, is to do violence to the language of this contract, and to defeat the very object which the parties designed to accomplish. We hold that these dividends were the sole and separate property — 198 — of Mrs. Boardman, and being hers by-an ante-nuptial contract, they continued hers after marriage, precisely as if she had remained a femme sole. Imlay v. Huntington, 20 Conn., 146; West v. Howard, id., 587. To hold, as we must, that by the terms of this settlement this widow is barred of her dower in this large estate, and then not permit her to call her own the income of the fund expressly secured to her and accepted by her in substitution, would be, indeed, the grossest injustice. As Lord Hardwicke pithily asked in Tyrrell v. Hope, 2 Atk., 558, we would ask. here, “ to what end should she receive it, if it is the property of her husband the next moment ?” The record shows that, from time to time, after the marriage, Mr. Boardman procured orders from the trustee of this property, who was his sister, and collected the dividends declared, as they fell due, through his bankers in New”York, who placed them to his credit, with other funds of his on deposit with them. That Mr. Boardman was accountable for these dividends during his life, and that his estate became chargeable after his death, payment over not having been previously made, is a necessary result of what we have already said, and must, indeed, be considered as settled on well established principles. Walker v. Walker, 9 Wallace, 743. It is insisted however, on the part of the appellant, that there are various most satisfactory reasons why this claim against the estate of Mr. Boardman cannot be maintained, even-if the original right to these dividends, under this marriage settlement, be conceded to Mrs. Boardman. Mr. Boardman was permitted to receive these dividends during his life, with Mrs. Boardman’s knowledge, and without objection or interference from her. He received and used them as his own, keeping no_account with his wife in respect to them, and rendering her no account of them; and though she was aware that he was so taking and using them, she never called upon him, or the trustee, for any account of them, or expressed any dissatisfaction with the course that was being pursued, or gave any notice of an intention to claim them as — 199 — her own. Wo are referred to divers highly respectable authorities, elementary writers and decided cases, by the appellant’s counsel, to show that under such circumstances the law implies her assent, and that at his death this income belonged to his estate. We deem it unnecessary to go into any examination of these authorities, for the reason that other facts, found by the committee, exert a paramount influence, and render the principles contended for inapplicable to the case before us. The committee Suds that Mrs. Boardman supposed and believed that this income belonged to her; that she had a general impression from the tenor of the contract that these dividends were to he invested and accumulate for her benefit and form an estate for her after her husband’s death; that she never intended to relinquish her legal rights under the ante-nuptial contract, and never supposed that she had done so; that she never in fact relinquished any of them, unless such relinquishment may he legally inferred and implied from other facts found, and from her acceptance of the provision made for her in his will. The committee further finds that Mrs. Boardman was not much aquaintod with business affairs, and had perfect faith in the good judgment and great caution of her husband; that lie was not in the habit of talking with her in relation to his business transactions or investments ; and that she, from motives of delicacy, never questioned him in relation to matters which lie seemed to prefer not to make a subject of conversation. On some occasions Mr. Boardman sent orders by his wife for the trustee to sign, saying “ they are orders for your dividends.” Some three or four years after the marriage Mr. Boardman had a negotiation with a gentleman in New Haven for the purchase of a block of buildings in that city. He informed his wife that he was about to make such a purchase with some of her dividends. She asked where, and he informed her. Soon after he told her that the owner refused to sell. About the same time, in speaking of the Southern States, and the probability of their repudiating tlieir bonds, he said to her, “ Now you will be glad you have — 200 — none of those Mobile bonds.” It-is found that Mrs. Board-man understood these remarks, in reference to her dividends and investments, as implying that he was, in some way, investing them for her benefit. On the shares of stock in the Delaware & Hudson Canal Company, stock dividends were made at three several times, amounting in the aggregate to one hundred and ninety-nine shares. Fifteen additional shares were also distribuí ed on the stock held in the Bank of New York. The trustee received the certificates for these additional shares with the knowledge of Mr. Boardman. One hundred and thirty-three shares of the Delaware & Hudson stock were subject to a payment of sixty dollars per share, which was made by the bankers of Mr. Boardman, by his direction, out of funds in their hands. One hundred dollars per share was in like manner paid, and in the same way, on the fifteen shares of additional stock in the Bank of New York; the dividends previously received by Mr. Boardman, from the trust funds, in each of those institutions, being greater than the amounts so paid. In August, 1860, Mr. Boardman purchased, through his bankers, for and .on account of said trust, fifty shares of stock in the Continental Bank in the city of Now York. These shares were transferred to the trustee by his bankers August 27th, 1860. The dividends on said trust stocks exceeded at that time the amount of the purchase. It is expressly found that this investment was made in consequence and on account of the dividends received from said trust stocks, and as a partial investment thereof, for the use and benefit of his wife. All these shares stood in the name •of the trustee, down to the 14th of February, 1870, when Mr. Boardman procured some of them to be transferred to himself by virtue of powers of attorney previously procured from the trustee. In face of these facts it surely cannot be said that Mrs. Boardman, knowingly and intentionally, gave up her right to these dividends. There was no relinquishment, no abandonment. She was aware that her husband collected them and disposed of them, and she assented to it. There are numer — 201 — ous cases, and of the highest authority, in -which it has been held that when the wife permits her husband to receive the profits of her separate estate, they living together, and he paying all the expenses of their domestic establishment, the presumption of law is, that it was the intention of the wife to make a gift of those profits to her husband. There are . many cases where in consequence of these receipts of the income of the wife’s separate estate, the husband is induced to live at greater expense than he otherwise would have done; thus increasing the comforts of their home, perhaps procuring luxuries for his wife as well as for himself. To call the husband to account, after a lapse of years, for moneys thus expended, or to make a claim on his estate, after his death, in favor of the wife, would obviously be unjust,. The case at bar differs widely from all such cases. Mrs. Boardman assented to the collection of the dividends on her separate estate by her husband, and to the disposition of them by him. Was her assent given to an expenditure of these dividends for her support, or for that of the family ? On the contrary, it is expressly found that she supposed ho was investing them for her benefit, flis own declarations to her, with other facts found by the committee, clearly warranted her in entertaining such a supposition at the time ; and from proofs now made, the fact is established beyond doubt or controversy, that this trust fund was increased by these dividends from time to time after the marriage, till the year before the death of Mr. Boardman. She never called for an aceoupt of these investments, and made no inquiry regarding them, during her whole married life. The reason is given by the com mittee. We think it creditable to them both. Living harmoniously and happily together, they found other topics of conversation more interesting than a discussion as to how they had bestowed, or how they should bestow, their increase of goods. The just demands of Mrs. Boardman aro not to he impaired by her having been silent rather than clamorous; a course of conduct which, under the circumstances, we must regard as eminently praiseworthy. Nor were Mr. Board-man’s expenses affected in the slightest degree by the receipt — 202 — ol these dividends. ' His annual expenditures absorbed but a small part of his individual income. The right of Mrs. Boardman to these dividends during her married life, as her sole and separate estate, being established, we discover, as yet, no reason why her claim against the estate is not just and valid. The liability for interest perhaps necessarily follows ; it certainly does in' this case, for interest was received. A few additional questions, bearing upon the main act, remain however to be considered. On the 31st of January, 1870, Mr. Boardman procured from the trustee powers of attorney to convey one hundred and ninety nine shares of stock in the Delaware & Hudson Canal Company, the accumulation on the original two hundred shares; fifteen shares of stock in the Bank of New York, additional to the original hundred and twenty shares ; and fifty shares of stock in the Continental Bank, previously purchased on account of the dividends received from said trust stocks,' and as a partial investment of the same for the use and benefit of his wife. On the 14th of February, 1870, acting under these powers of attorney, Mr. Boardman caused these shares of stock in the Delaware & Hudson Canal Company and in the Continental Bank, to be transferred to himself; and on the 11th day of April, 1870, ho caused the shares in the Bank of New York to be transferred to himself by virtue of the same power. And it is found that, at the timo he applied”for and obtained said powers of attorney, and transferred said stocks, he intended thereby to convert the same to his own use, so that neither said stocks, nor the dividends' received by him upon said original trust stocks, should go to the use and benefit of his wife, but should belong to and form part of his estate. Of all these transactions, indeed of the existence of these stocks, as accumulations of, or as belonging to, the trust funds, Mrs. Boardman was wholly ignorant until after his death. j Wd cannot regard these acts of Mr. Boardman as materially affecting the rights of Mrs, Boardman. At the most, they amount to no more than an assertion of his rights, as ho understood them, to those trust funds and accumulated — 203 — dividends; his construction of the ante-nuptial contract. It should be home in mind that during all his previous married life, then approaching thirteen years, he had given this contract a totally different interpretation; had recognized and treated these dividends as she had, as hers, not as his. This late, sudden, and unexplained change of views, wrought out in secret, so far as she was concerned, cannot and should not increase any right of his or diminish any right of hers. But the will of Mr. Boardman, made in connection with these transactions, on the 19th of March, 1870, makes provision for Mrs. Boardman, which, it is insisted, she cannot accept, as she has done, and also be entitled to the allowance of this claim. In the first item of this will the testator says : — “ The settlement I made with my dear wife, Lucy II. Boardman, before our intermarriage, in lieu oí dower, is hereby confirmed ; and in addition to the provision therein made for her, I hereby give and devise to her the mansion house, grounds,” &c., &c. Then follow other bequests; then this clause:— “ My intention and object was and is, to make abundant provision for the support and comfort of my dear wife, by the three preceding items, in lieu of dower, or share in my real or personal estate.” He then disposes of the residue of his estate, making no other or further allusion to his wife. While it is quite plain that by accepting the provision made for her in this will the widow is cut off from dower, we discover nothing in the entire document which bars her from presenting and enforcing any legitimate claim, by way of indebtedness, which she may have against the estate. Besides, the will confirms this marriage settlement, and directs all just claims and expenses to he paid. So far, therefore, from finding any impediment to the payment of this claim within the will itself, we should say, looking to that instrument alone, that the testator directed that it should be paid. . Highly respectable authorities, certainly, are' not wanting to show that we are not at liberty to go outside of what is technically styled the four corners of the will, in a case of this description, to get at the intention of the testator. That may — 204 — .be the safer and better rule, but, as we reach the same result in either event, we prefer not to put the case solely on that ground. Going outside of this will, it appears that the testator did not suppose that this claim would be made against his estate; that the clauses in it relating to Ins’ widow were placed there in the belief that it would not be made. Perhaps it is no assumption under these circumstances to say that the testator then regarded the claim as invalid; that if presented it would not be allowed. Had he known that the law would have pronounced the claim good, and that his estate was responsible for it, can any one say that he would not haA^c said to his executors, pay it? But then he would have altered his will. That "is possible, but what would the alteration have been ? Is any one warranted in saying that he would have made no bequest whatever to his wife ? If any, how much ? Taking out this claim, his estate had more than doubled during his married life. On reflection, is it certain that he Avould have diminished the amount given to his wife ? But it is idle to wander in this field of conjecture. That the will gives the widoAv the original trust fund, and certain specified amounts in addition, is agreed. Let the provisions of the will be carried out, and let this claim stand on its own merits. But it is said that the provisions of this will, in favor of Mrs. Boardman, were made known to her, and that she expressed herself fully satisfied with them. "We see nothing in that to bar this claim. She was not asked to relinquish it, .and did not suppose that she had relinquished it. Nor do we think that the doctrine of election applies in this case. The amount received by the residuary legatees will, po doubt, be diminished by the payment of this claim ; but wo do not think that the assertion of it violates the familiar principle which forbids one, after taking a beneficial interest under a will, from sotting up a right or claim which shall defeat the effect and operation of that will. The statute of limitations presents no bar. As against the trustee no right of action has accrued. Mr. Boardman — 205 — held this money .by power of attorney from the trustee, and was in the place of the trustee. He exerted no power as husband, nor as such did he attempt to exert any, prior to 1870 ; when, and not before, if her rights were not saved by coverture, the statute began to run. We advise the Superior Court to make the corrections in the items of this account suggested in the report of the committee ; and then to affirm the decree of the court of probate. In this opinion the other judges concurred.