Hewitt's Appeal from Probate

Andrews, C. J. Miller S. Allen preferred Ms application to the probate court in the district of Norwich on the 28d day of June, 1887. He described himself to be of Mont-rose, Susquehanna county and state of Pennsylvania, alleged that he was the trustee duly appointed by the proper court in that state for certain persons named in the application, and asked that a portion of the estate of John J. Newton be transferred to him as such trustee. Erastus Hewitt, the — 230 — executor of the will of Mr. Newton, was made a respondent to the application. The court of prohate in the Norwich district made an order authorizing such a transfer to- be made. From that order Mr. Hewitt appealed to the Superior Court for New London county where the order of the probate court was affirmed. Mr. Hewitt now appeals to this court. At the outset it is objected that Mr. Hewitt has no such interest in the matter as authorized him to take any appeal from the order of the probate court. We think he was so affected by the decree appealed from that he had good right to take the appeal. On the one hand the liability on his administration bond to which he might be subjected if he complied with the order, and on the other hand the liability to a suit by the trustee Allen if he refused to comply with it, is an interest such that it is very clear he might be aggrieved. The finding shows that John J. Newton died on the 9th day of September, 1883, resident and domiciled in the town and probate district of Ledyard. He left a will the third and fourth paragraphs of which are as follows: “ Third. I give, devise and bequeath the use and income of all the rest and residue of my estate to the children of my two deceased sisters, Sally Smith, (who was the wife of Latham A. Smith), and Mary L. Hempstead, (who was the wife of Gurdon Hempstead), and in case any child of either of my said sisters has died leaving children, the portion of said income which would go to such child of my sisters shall he paid over to his or her children; and said residue shall be divided into as many equal parts as there shall be of my said nephews and nieces, counting those who shall be living at my decease and those who shall have died leaving children, and one of said shares set apart for the use of each of said nephews and nieces living and for the use of the representatives of each of said nephews and nieces who shall have died as aforesaid leaving children, and the income of each of said shares paid over to the persons entitled thereto during life. “Fourth. Upon the death of the nephew or niece or grandnephews and grand-nieces entitled to any .of the shares afore — 231 — said, such share shall be delivered and paid over, and I give and devise and bequeath the same, to the children of such nephew or niece, grand-nephew or grand-niece, share and share alike, and in ease there be no such children it shall be divided among the other nephews and nieces, grand-nephews and grand-nieces in proportion to their respective shares, and the children of such nephews and nieces, grand-nephews and grand-nieces, where any share shall have been distributed to such children.” The will was duly proved and approved in the probate court in the district of Ledyard. Eras tus Hewitt of Preston was named therein as executor. He duly qualified as such and proceeded in the settlement of the estate. All the known debts are paid, the administration account has been settled, and the estate is ready for distribution as soon as by the terms of the will i t can properly be done. The property of the estate consists mainly of personalty. No trustee was named in the will, nor has one been appointed by the probate court, to hold such property during the continuance of the life estates therein created by the avíII ; nor was there any direction in the will that any life legatee should have the possession of it. Mr. Hewitt has annually paid over the income of the property to the beneficiaries under the will in accordance with the order of the court of probate in the district of Ledyard. Sally Smith, Mrs. Newton’s sister, mentioned in the will, had ten children. Mary L. Hempsted, the other sister, had five children. The persons for whom Miller S. Allen brought his application are a part of the children of said Sally Smith. They reside in the state of Pennsylvania. It does not appear that all of them have children; and it does appear that some of the children of. one or more of them reside in states other than Pennsylvania. None of the children of Mrs. Hempsted reside in that state. Three of the children of Sally Smith have died since the death of Mr. Newton; two of them leaving children and one leaving no child. The town of Preston, where Mr. Hewitt resides, is in the probate district of Norwich. The personal property belong — 232 — ing to the estate is in his custody and possession, except so far as it has been paid over on orders of the court of probate. ' In the settlement of a solvent testate estate the will is the law, and so long as any part of the property of such an estate remains in the estate, as an estate, unsevered by a distribution or otherwise, no court of probate other than the one “ having cognizance of the will” can make any lawful order or decree concerning its custody or disposition. Nor can that court of probate make any order concerning the property that is not according to the provisions of the will. An examination of the will of Mr. Newton shows that he intended the residue of his estate to be a fund, the income of which should be divided into as many parts as he should have nephews and nieces, or their representatives, (children of his sisters who are named,) living at his death, and that one of these parts should be paid to each of these nephews and nieces or their representatives, during their lives; and that the residue itself, the principal from which the income was derived, should be divided into as many parts as there should be nephews and nieces of his who at their own death should leave surviving children. The number of the persons to whom the income is to be paid, and so the number of parts into which the income was to be divided, was fixed at the death of Mr. Newton. But the number of parts into which the residue itself is to be divided cannot be certainly known until the death of the last life legatee. One of his nieces has already died without children; others may die leaving no child; and as it may so happen that the life legatee who shall live the longest may leave no surviving child, it cannot, until that event happens, be known how many persons there will be who are entitled to a distributive share in the principal of the residue. Nor can it until that time be known with certainty who the distributees are. And when distribution is to be made the persons who are entitled to take, as well as the share which each is entitled to receive, can only be ascertained by the court of probate in the district of Ledyard, for the reason that that court only has cognizance of the will. — 233 — Till the time for distribution comes it is necessary that the whole residue be kept within the control of that court, to the end that it may then be distributed in a proper manner and to the rightful persons, and so that it may be distributed as a single fund, or, if there should be partial distributions, that these may be made as parts of one entire fund. These considerations show clearly that the will contemplates but one trust for the entire residue of the estate, and not as many different trusts as there were nephews and nieces ; and that the residue itself is not to be divided during the continuance of any life estate, any further than may be necessary to ascertain the portion of the income to be paid to each life legatee. The application was claimed to be brought pursuant to section 497 of the General Statutes, and it was made to the probate court in the district of Norwich, upon the averment that the property was principally in that probate district. The facts, however, show that the property was in the district of Norwich in. no other way than that it was and is in the custody of the executor, Mr. Hewitt, who resides in that district. The estate of John J. Newton being in settlement in the court of probate in the district of Ledyard, its legal situs is in that district. The accidental circumstance that the executor resides in the district of Norwich and that the nominal location of the property is there, cannot operate to give the probate court in the latter district any jurisdiction over it. The title which Mr. Hewitt has to the personal property of his testator does not make it his property in any such sense as to impress it with the situs of his residence. It was decided two hundred years ago in Cole v. Knight, 3 Mod., 278, that “when an executor hath goods of his testator and also other goods of his own, and then grants omnia bona sua, the goods which he hath as executor do not pass because they are not bona sua” and such has been the law ever since. Farmer’s & Mechanic’s Bank v. Brewer, 27 Conn., 601. It follows that the decree appealed from is wholly void for the reason that the court of probate in Norwich had no jurisdic — 234 — tion over any part of the property belonging to the estate of Mr. Newton. And further; it is quite difficult to see how such an order as was made in this case could be sustained, even if it had been made by the probate court in Ledyard. It undertakes to divide the residue of the estate during the continuance of the life interests therein in a way altogether inadmissible. We have already shown that the residue constitutes but one trust fuud instead of a number of trust funds. Obviously this residue is a single fund or it must be divided into as many trust funds as there were nephews and nieces. It cannot be partly one and partly the other. No argument whatever can be made to show that this residue, if to be divided at all, can be divided into any less number of parts that there are life legatees. No number of these legatees greater than one and less than all can unite and have it divided in any other way. To do so would be to disregard what seems to be the plain intent of the will. There is error in the judgment appealed from and it is reversed. In this opinion the other judges concurred.