Wordin Appeal from Probate

Feítít, J. This is a reservation by the Superior Court of — 46 — questions arising upon an appeal to that court, from the order and decree of the court of probate for the district of Bridgeport, made on the 80th day of December, 1892, accepting a division of the testate estate of Nathaniel S. Wordin, by persons appointed by said court to make such division, pursuant to General Statutes, § 558. It appears by the record that said Wordin died June 10th, 1889, leaving a last will which was duly admitted to probate, by which will, after giving sundry legacies, he disposed of his property as follows:— “ Paragraph Fifth. I will, order and direct, that all the rest of my estate and property remain in the care and keeping of my executors during the lifetime of my said wife, Fanny Augusta, and that my executors shall collect the rents, dividends and interest which may accrue thereon as it becomes due, and pay the legal taxes, insurance and necessary repairs on the buildings, and other legitimate expenses, and pay over the balance to my said wife semiannual^, or from time to time, as may be needful, to be used or invested as her own absolutely. “Paragraph Sixth. At the decease of my wife, Fanny Augusta, aforesaid, I give, devise and bequeath to my executors in trust, so much of the homestead, No. 334 State street, as lies south of a line parallel with State street, and distant therefrom one hundred and fifty feet, for the free and unmolested use of my daughters, Helen C. and Fanny L., aforesaid, jointty, during their natural lives, or the lifetime of the survivor of them. My said executors to pay legal taxes and assessments thereon, and keep the same in repair, out of any funds belonging to mv estate, during said term. At the decease of both daughters, aforesaid, the property shall become and be a part of the residue of my estate, and treated as such. “Paragraph Seventh. At the decease of my wife, Fanny Augusta, aforesaid, subject to the foregoing, I will and direct, that the residue and remainder of my estate be divided into four equal shares, and I give, devise and bequeath to my executors and their successors in trust, one of said shares — 47 — for each of 1113" children, to wit: Helen C., Nathaniel Eugene, Fanny L. and Thomas C., aforesaid, in the manner and for the purposes hereinafter provided and stipulated : First. One shall be held and managed for my son, Nathaniel Eugene Wordin, M. D., aforesaid, and the net income, rents and profits paid over to him semi-annually during his natural life. If, at his death, he shall leave a son or sons, his own issue, then I will that said share become and be vested in said son or sons, share and share alike, absolutely, and to his or their heirs. Second. Two shares shall be held and managed for Helen C. and Fanny L., aforesaid, and the net income paid over, one half to each respectively, semi-annually. Upon the death of either, the Survivor shall take the net income of both shares, during her natural life. Third. The remaining one share shall be held and managed for my son, Thomas Cook Wordin, aforesaid, and the net income paid over to him semi-annually, during his natural life. If, at his death he shall leave a son or sons, his own issue, then I will that said share become and be vested in said son or sons, share and share alike, absolutely, to his or their heirs.” The executors named in the will declined to act, and thereupon an administrator with the will annexed was duly appointed and qualified. The widow died August 25th, 1892. In October following, the administrator filed his account with the court of probate, showing propei^ real and personal, amounting in the aggregate to $288,538.99, on hand, after all the charges and claims against said estate had been satisfied, except such burden as may be imposed upon said estate by virtue of the provisions of paragraph sixth of the will, relative to the payment of taxes, assessments, and repairs, which might accrue in the future, concerning the property therein described. Thereupon, on October 20th, 1892, the court of probate passed an order as follows:—“ That said real and personal estate be divided into four equal shares and distributed among the residuary devisees and legatees under said will, to wit, to the trustee of said shares respectively for said Helen C. Wordin, Nathaniel Eugene Wordin, Fannie L. Wordin and Thomas C. — 48 — Wordin, for the purposes specified in said will, said division of said residue and remainder of said estate to be made according to and subject to the terms of said will, and according to law, and this court appoints Joseph W. Johnson, Philo H. Prindle and Chas. E. Wilmot, disinterested persons, who being duly sworn, shall make said division among and distribution to said trustees for said beneficiaries as required by said will, and according to and subject to the terms and conditions of said will and according to law, and make return to this court.” The persons appointed made return of their doings, dividing the estate into four equal parts, one for each of the four children, all being set to William B. Hincks, the administrator with the will annexed, in trust for said children respectively. No provision was made for the payment of the taxes, assessments and repairs provided for in paragraph sixth of the will. Nor was the matter in any wise referred to in said division. The court accepted such division and ordered it to be recorded and lodged on file. Pending the appeal, the record discloses that said William B. Hincks represented to the court of probate that a question had arisen whether he, as the administrator with the will annexed of the estate of Nathaniel S. Wordin, deceased, was, as such administrator, the successor of the executors appointed in said will, in trust, and entitled to act as trustee under the provisions of paragraph seventh of the will; that he desired to remove all doubt, and therefore declined to act as trustee. The declination was accepted by the court, and said court appointed Joseph W. Johnson trustee for Nathaniel E. Wordin; David Pendleton trustee for Helen C. Wordin and Fannie L. Wordin ; and Herbert M. Knapp trustee for Thomas 0. Wordin; all of whom have duly become parties to this reservation. The appeal was taken by said Fannie L. Wordin and Helen 0. Wordin, who claimed to be aggrieved because there was not set aside in the division, a sufficient sum to provide for the payment of the legal taxes, assessments and repairs referred to in paragraph sixth of the will; because in no way — 49 — was there reserved or set aside any fund or estate for such payment, and because said division is not in terms expressed to be charged with, or subject to, the burden of such payment. In considering the interesting question thus presented to us by the reservation, let us first look carefully into the provisions of the will which we have quoted, in order to discover therefrom, as clearly as possible, the intention of the testator. It was his manifest design, as expressed in paragraph fifth, that during the lifetime of his wife, the entire property in bulk should remain undivided and unapportioned in the hands of the executors, who, out of the income, were to pay all legitimate expenses, including taxes and repairs, and the balance to his wife to be used and invested as her own, absolutely. It was also his intent as expressed in paragraph sixth, that after the decease of his wife his daughters should have the use of the homestead, or a certain defined portion thereof, for their lives and the life of the survivor, and that during this term his said executors should, out of any funds belonging to his estate, pay the legal taxes and assessments thereon, and keep the premises in repair. Coming now to paragraph seventh, three things are to be noticed. First, while at the decease of his wife the residue and the remainder of the testator’s estate was to be divided into four equal shares, one to be held in trust for each of his four children respectively, yet the direction for division was made expressly “ subject to the foregoing,” viz., the provisions of the sixth paragraph. Second, although the executors were named as trustees, “successors in trust” were also provided for,which had not been done in the preceding paragraphs. Third, the trust as to the share of each of the sons might terminate, and such shares vest absolutely in issue, during the continuance of the life estate provided for in paragraph sixth. It would seem to follow therefore that the only way in which the executors could comply with the requirements of the express terms of paragraph sixth, to pay legal taxes, assessments, and repairs (which, it may be noticed, they were themselves instructed to make,) “ out of any funds belonging to my es — 50 — tate, during said term,” would be by reserving in their hands sufficient funds -to provide therefor. We also think that when, immediately following the creation in paragraph sixth of a life estate in the homestead, in the daughters, together with the provision for the payment of taxes, assessments and repairs thereon, the testator began paragraph seventh by saying: “At the decease of my wife Fanny Augusta, aforesaid, subject to the foregoing, I will and direct that the residue and remainder of my estate be divided,” etc.—his intention was that such division should be subject to the life estate of the homestead ; and further, subject to such reservation of the other property or funds of his estate, as would enable the executors to carry out the positive requirements of his will, imposed upon them, in reference thereto. Such being, in our opinion, the intention of the testator, the next inquiry is whether such a provision is valid, or whether as the appellees claim, it should be void for uncertainty. In support of the claim that it is void, the appellees say that the setting aside by the court of probate, or the reservation by the administrator of a certain sum of money, as a fund, to yield an income equal to future taxes, assessments and repairs, would create, in that respect, an active trust, with legal title of an integral part of the estate vested in a trustee for its proper execution, as distinguished from a mere power in trust; and that such trust cannot be maintained when tested by the rules of equity applicable to the subject, because certainty in the quantity of the estate to which the trust is to attach, is essential to its validity. In support of this proposition they cite as authority, Jarman on Wills, pp. 388, 389; Chapman v. Brown, 6 Vesey, 404; Limbrey v. Gurr, 6 Madd., 151; Fowler v. Fowler, 6 Beavan, 618; In re Bickett, 9 Ch. Div., 580; Mitford v. Reynolds, 16 Sim., 105; Atty. Gen. v. Hinxman, 2 J. & W., 269; Redfield on Wilis, Vol. 1, pp. 676, 683, 684; all of which on examination appear to be in point to the extent only that they are authority for the proposition that a bequest so indefinite as to amount, or subject-matter, as to be incapable of determination and execution by the court, is void. This principle is so unques — 51 — tionable as hardly to justify the citation of authority at all in its support. If it did, such authority might be found in our own state, in Coit v. Comstock, 51 Conn., 352, 386, as explained in Bristol v. Bristol, 53 Conn., 242, 257-260. The very authorities cited by the appellees all show that if the object of the testator is so defined “ as to furnish fair and reasonable data, the court will determine the amount which ought to have been expended on it; ” and that a bequest of a residue or surplus of a specific fund remaining after providing for an object illegal or unattainable, the exact amount to be laid out on which is not specified, is not void for uncertainty, if the court can determine what would have been the probable amount to be expended. In short the authorities do not require more than approximate or reasonable certainty, and none, in applying the rule, go to the extent which we should be obliged to go were we to declare the testator’s purpose void for the want of such certainty. On the other hand it may fairly be held on principle, that a less degree of certainty as to the amount required to be reserved or set aside, should serve to support the provision before us, than would be requisite in the cases cited by the appellees. In those cases the question arose concerning the validity of bequests of residue remaining after indefinite provisions for objects illegal or unattainable; the amount required for which, once ascertained with whatever degree of probability, could never be made more certain, or any inequality finally obviated, since the purpose of the testator would never be actually executed. In this case it is otherwise. If an amount be set aside which proves too large for the pm’poses to be provided for, very little, if any, harm can come to the beneficiaries from the retention of such excess in the hands of the administrator, since the whole beneficial interest in both principal and income of the entire sum, subject to the charge, belongs at all times to them respectively; and so far as the children of the testator are themselves concerned, the only difference is that this amount remains in the hands of the administrator in trust, instead of passing into the hands of the trustees to hold in trust. — 52 — It is true that it would be impossible for a court to determine the exact amount which in the uncertain future will be required for the purpose contemplated by the testator. The valuation of the homestead from time to time for the purposes of taxation, the rate of such taxation, and of municipal assessments, and the cost of repairs, are doubtless incapable of precise determination in advance. So also, the amount which may be derived as income from any sum or property set aside must be measurably uncertain. But there are no facts before us to show, nor are we able to take judicial notice, that all these things may not be fairly and reasonably approximated. Indeed we believe they maybe, and. with no more difficulty than is experienced in matters occurring in the almost daily practice of the courts of probate in this state, where partial distribution is had, and the sums retained in the hands of executors, or administrators, for ultimate disposition after the discharge of the trusts or duties imposed. It was early declared by this court in Brewster v. McCall’s Devisees, 15 Conn., 274, 292, that: “A devise is never to be construed absolutely void for uncertainty, but from necessity. . If it be possible to reduce it to a certainty, the devise is to be sustained.” This principle is one which has received frequent application since, and we do not hesitate to apply it now and to hold that no such necessity has been shown, or is to be presumed to exist. Finally, the appellees say that persons having been duly appointed under § 558 of the General Statutes to make the division required by the seventh paragraph of the will of the testator, and such appointment being by an order from which no appeal has been taken, the division was a ministerial duty directed by the testator, and over which the court could exercise no jurisdiction in respect to the reservation of a fund for the payment of the claims urged by the appellants. They say that the appellants’ interests, under paragraph sixth of the will, are not affected by the act of division; that therefore, within the meaning of General Statutes, § 640, they are not interested persons, and cannot be aggrieved; and that if they can be said to have an interest in the division ordered — 53 — by the testator, by virtue of their rights under paragraph sixth, then the order of the court of probate, under the terms of the Statutes, § 558, is binding on them and that the appeal should be dismissed. In reference to this contention we will say that there are two orders of the court of probate. The order for division, which is unappealed from, and is binding ; the order accepting the division which has been appealed from and is before us. The former order directed the division of the estate on hand to be made “ according to and subject to the terms and conditions of said will.” The latter order accepted a division in which no consideration was given to such “ terms and conditions.” It is true that the powers of both the court of probate and of the persons appointed by it to make division, are strictly statutory, and of the latter purely ministerial. They cannot affix conditions or attach burdens to the division. But they ought to recognize those which the testator has attached. Failure to do so is equivalent to an attempt to nullify such provisions. We need not inquire whether such an attempt could be successful. It may well be true, as the appellees say, that a court of equity could enforce the charge ; or the appellants might, in the capacity of creditors of the estate, require the administrator to discharge the obligation without reference to the division made; that he would be liable on his bond. Sanford v. Gilman, 44 Conn., 461, 464. But because in some less convenient and more litigious way, involving family quarrels and dissensions, the same end could ultimately be accomplished, no reason is afforded why the appellants should be deprived of the very security and means which it was the intention of the testator they should have, through an omission of the persons appointed to make division under his will to recognize such means, coupled with the approval of the court of probate of such omission. It cannot be correctly said that because as cestui que trusts of two of the trust shares in the residue of the estate, the appellants do not claim to be aggrieved by the division, it being conceded that the division of such residue was fairly and equitably made, they cannot be aggrieved at — 54 — all. They are bound by the division, when accepted by the court, as a whole ; and if, taken as a whole, they are in any way prejudiced by it, in respect either to right or remedy, under any provisions of the will, they are thereby aggrieved. It would have been a simpler and more customary way had the court of probate made an order for only partial division, reserving a sufficient sum to meet the requirements of paragraph sixth of the will. Clement v. Brainard, 46 Conn., 174, 181, 182. But the same result can now be accomplished by a division, as directed, “ subject to the terms and conditions of the will; ” that is to say, subject to such a reservation of estate distributed, in the hands of the administrator, as may be found and ascertained by the court of probate will be sufficient to yield an income ample to defray the outlay charged upon the estate for taxes, assessments and repairs. Bristol v. Bristol, supra, p. 260. This will be similar to the distribution of property subject to dower, or other life estate, before the termination of such particular estate, which may,' nevertheless, if personal property, remain in the hands of the executor until the determination of such particular estate. Sanford v. Gilman, supra; General Statutes, § 632; Webster v. Merriam, 9 Conn., 225. “ If the substantial requirements of the will are complied with, the manner of doing it is not very material.” Platt v. Platt, 42 Conn., 346. For the reasons stated, we think there is error in the order and decree of the court of probate appealed from. And the Superior Court is advised that such order" should be reversed, and that division should be made of the estate of the testator, subject to the right and duty of the administrator with the will annexed to retain in his hands such items and amount of the property divided, reserved equally from each share, as in the opinion of the court of probate, upon due hearing had and finding made, may be sufficient to enable such administrator, from the net income thereof, to defray the charges for taxes, assessments and repairs specified in paragraph sixth of the will, during the term therein created. Said court is also further advised, that should the amount reserved be found too large, it will be in the power of the court — 55 — of probate, at any time, by proper proceedings and order to direct further payment of principal or income to the persons entitled to the same under the division ; and also, at the close of the term, by proper order, to correct any inequalities which may have arisen in the shares of the beneficiaries in the reserved fund during the term. Platt v. Platt, supra. In this opinion the other judges concurred.