Johnes v. Jackson

Andrews, C. J. This is an action of scire facias. The controlling facts are as follows:— ■Clara P. AÍso’p died on the 28th day of'February, 1894, leav — 87 — ing a last will and testament, in which she appointed the present defendant her executor, and named Charles R. Alsop a legatee. The estate of the said testatrix consisted partly of real estate and partly of personal property. On the 5th day of March, 1894, the present plaintiff brought a suit against said Charles R. Alsop, in the Superior Court in Middlesex County, demanding $4,000 damages, and caused the interest of the said Charles R. in the estate of the said Clara P. Alsop to be attached, by directing the officer to leave a true and attested copy of the writ and complaint in the said suit with the present defendant as such executor — describing him as the agent, trustee and debtor of the said Charles R., and having the goods or estate of the said Charles R. Alsop in his hands. The process was duly served, and the plaintiff recovered judgment in that suit against the said Charles R., on the 27th day of April, 1894, for the sum of $8,446.63 damages, and $31.68 costs of suit; and for those sums took out execution, and caused legal demand to be made thereon of the present defendant, as such garnishee. The defendant, refused to pay said execution, or to show any estate of the said Charles R. on. which said execution could be levied. On the 17th day of March, 1894, the will of the said Clara P. Alsop was duly proved and approved by the Court of Probate in the District of Middletown, and the defendant accepted the trust of being the executor thereof, and gave bonds. Other facts appeared in the case, but in the view that the court has taken, it is not necessary that they be stated. Section 1231 of the General Statutes provides, among other things, that where any debt, legacy, or distributive share is or may become due from the estate of any deceased person,. to a defendant in a civil action in which a judgment for money damages maj’ be rendered, the plaintiff may insert in his writ a direction to the officer to leave a true and attested copy, thereof and of the accompanying complaint, with the executor or administrator of such estate ; and from the time of leaving such copy, any debt, legacy, or distributive share due, or that may become due to him from such executor or administrator, — 88 — shall be secured in the hands of such garnishee to pay such judgment as the plaintiff may recover. ■ It is strenuously urged that because the will of Clara P. Alsop had not been approved by the Court of Probate on the 5th day of March, 1894, the leaving of a copy of the complaint with the defendant on that day, was not a good attachment of the legacy or distributive share in the estate of Clara P. Alsop which might become due to Charles R. Alsop. We cannot assent to this view. On the contrary, it seems to us that the title to, and the possession of, the property of the testatrix, was at that time so in the defendant, that the service on him was a good service to secure in his hands such part of her estate as may be found to belong to Charles R. Alsop. An executor takes his title to the movable estate of a deceased person from the will, as a recognized instrument of conveyance at common law. “No probate (of the will) is essential to his title, unless there is some local statute which makes it essential. His title accrues at the instant of death, and without probate he may do many acts which appertain to his office. He may collect debts, sell property, pay debts and legacies, etc., and his acts will be legal. ... So far as the local laws require him to prove the will, file an inventory, and settle the estate according to its provisions, he must conform to their directions, but such conformity is not essential to his title unless expressly made so by statute. And he may be sued and charged as executor de jure, not de son tort, unless he renounce, and upon proof of his acceptance by having acted as such, before he proves the will, for he is executor de jure, irrespective of such probate.” Marcy v. Marcy, 32 Conn., 308, 316. The doctrine of this case has been referred to in several later cases with approval, and we understand it is the settled law of this State. Irwin’s Appeal, 33 Conn., 128,137; Hedenhurg v. Hedenhurg, 46 id., 30; Selleck v. Rusco, ibid., 370; 372; Hartford N. H. R. R. Co. v. Andrews, 36 id., 213, 215. “An executor is a person appointed by a testator to carry out the directions and requests in his will, and to dispose of the property according to his testamentary provisions after his decease. As his interest in the estate of the -deceased is — 89 — derived from the will, it vests, according to the common law, from the moment of the testator’s death. The will becomes operative, including the appointment of executor, not by the probate thereof, not by the act of the executor in qualifying, which are said to be mere ceremonies of authentication, but by the death of the_ testator.” Woerner’s Law of Admin., § 172; Wankford v. Wankford, 1 Salk., 299; Graysbrook v. Fox, 1 Plowd., 275, 277a; Smith v. Milles, 1 Term, 475, 480; Humphreys v. Humphreys, 3 P. Williams, *351. “ The law knows no interval between the testator’s death and the vesting of the right of his representative.” Denman, Chief Justice, in Whitehead v. Taylor, 10 Ad. & E., 210, 212. In Rand v. Hubbard, 4 Met., 252, 257, Chief Justice Shaw says: “But the title of an executor is derived from the will itself, and he may perform most of the acts incident to his office, before probate.” See also: Hathorn v. Eaton, 70 Me., 219; Shirley v. Healds, 34 N. H., 407 ; Lane v. Thompson, 43 id., 320; Johns v. Johns, 1 McCord, *132; Seabrook v. Williams, 3 id., *371; 1 Williams on Executors (6th Ed.), 338, 347; 7 Amer. & Eng. Ency. of Law, 230. A statute would hardly undertake to say that the title of an executor to the movable property of his testator, did not come from the will. Such a statute would in effect declare that a will was not a will. There are statutes which say that an executor may not bring a suit respecting such property, until the will has been duly established in the proper court and he has given bonds. Dixon v. Bamsay, 3 Cranch, 319. There is, upon principle, no necessity for the probate of a will to establish the title of an executor to the movable property of the deceased, any more than to establish the title of a devisee to the land devised to him. In either case the title comes from the will, and the title accrues at the moment of the testator’s death. The probate of the will does not give a title to either, but it does furnish incontrovertible evidence that the will is what it purports to be. If a party should claim title to land by deed, or to personal property by a bill of sale he must establish by preliminary proof that the deed was duly signed, witnessed and acknowledged, or — 90 — that the bill of sale was authentic, before the deed or the bill of sale could be admitted in evidence to prove his title to the land in the one case, or to the movable property in the other. No document is received as evidence until .the party desiring to offer it has first established its genuineness to the satisfaction of the judge. Reynolds on Evidence, 157. Where a party claims property by a will, the probate of the will furnishes the preliminary proof that the writing purporting to be a will was duly executed, and that the testator was of sound mind. The will then can be admitted in evidence and proves the title. Our statutes commit the probate of' all wills to the Courts of Probate ; and it has been held in this State that that court is the only tribunal competent to decide the question of the due execution of a will — including the testamentary capacity of the testator. Fortune v. Buck, 23 Conn., 1, 8. Hence a party who desires to show title by a will, to personal property or real estate, can have it received as evidence of such title, only after it has been established in the proper Court of Probate; because that is the only way in which he can show that the will under which he claims, is genuine. Tompkins v. Tompkins, 1 Story, 547; Smith v. Fenner, 1 Gall., 171; Langdon v. Goddard, 2 Story, 267. The final decree of the proper Court of Probate as to the. validity or invalidity of a will is conclusive, so that the same, question cannot be re-examined or litigated in any other tribunal. The reason is, that it being a decree of a court of competent jurisdiction, directly upon the very subject-matter in controversy, to which all persons who have any interest are. made or may make themselves parties — because they are notified by the fact of death, as well as by the requirement of the statute to be present for the purpose of contesting the validity of the will' — -it necessarily follows that it is conclusive as to them all. Such decrees are treated as of the like nature as sentences or proceedings in rem, necessarily conclusive upon the matter in controversy, for the common safety and repose of mankind. 1 Williams on Executors, (6th Ed.) 549; Merrill v. Harris, 26 N. H., 142; Allen v. Dundas, 3 — 91 — Term Rep., 125. But the party has no greater, or better, or different title, after the probate than he had before. Bent’s Appeal, 35 Conn., 523. The record before this court shows that the estate of Clara P. Alsop was appraised at $82,838.77, of which $17,000 was in real estate; and that the share of Charles R. Alsop will be, in no event, less than one twenty-fourth part of the whole. It appears that a suit is pending in court for a construction of the will of the said Clara P., and that her estate is not yet settled. Obviously a judgment cannot now be rendered against the defendant, for the reason that the time has not come when, if the attachment had not been made, it would have become his duty in the settlement of the estate to deliver to the said Charles R. Alsop the legacy or distributive share to which he is entitled. As the case now stands, we advise the Superior Court to render judgment for the defendant. In this opinion the other judges concurred.