Albertson v. Landon

Foster, J. Wyllys Butler, of Branford, by his last will gave a life estate in all his property, real and personal, to his widow. He gave the remainder in fee to four grandchildren, provided they should survive his widow, their grandmother. If they did not, the remainder of the estate was given to Charles Butler and Emeline Spencer and their heirs. Though there is no finding of facts, it appears from the briefs of counsel that the grandchildren, to whom the remainder of the estate was given, all died before the tenant for life. ¡Caroline M. Albertson, one of the grandchildren, is spoken of as the last survivor, and as having died a short time before her grandmother. Her executor prefers this application in the court of probate, for the sale of all the real estate of the testator, lying in Branford, except the life estate, or so much thereof as will raise the sum of $5,000. The application sets forth that the said Caroline, in her lifetime, and during the existence of the life estate, advanced and paid the above sum for the necessary repairs and improvement of said real estate, and for the necessary support of said widow, the tenant for life, between the 1st day of January, 1857, and the first day of January, 1866. The statute, under which this application is made, was passed by the General Assembly, at its May session in the year '1866. This application stands on demurrer in the Superior Court, and the question raised is reserved for the advice • of this court. We think the demurrer is well taken. The application is 'based solely on the statute, and the expenditures, both for repairs and for the support of the tenant for life, were made prior to.its:,enactment. [211] To give this statute the retroactive effect claimed for it, would he to defeat the intent of the testator, Wyllys Butler,, and to deprive Charles Butler and Emeline Spencer of their { vested rights. To show that this cannot be done would be a mere waste of words and time. Whether this act may operate prospectively or not, it is ; unnecessary to decide; and so as to that we express no opinion. | We decide simply the question before us, and advise the Su-j perior Court that this demurrer should be sustained; that this: application is insufficient and should be dismissed. In this opinion the other judges concurred.