Jacobs v. Button , 79 Conn. 360 ( 1906 )

A will is the legal declaration of intention as to the disposition of one's property after death. To this intention, made known through the written declaration, the law gives effect, and so executes the testator's will. Voluntatis nostrae justa sententia de eo, quod quispost mortem suam fieri velit. Pandects of Justinian, Ch. 28, 1; 2 Bl. Comm. 499. The condition of a testator's property at the time his declaration of intention is made, as well as at the time it takes effect, may throw light upon the meaning and effect of the language used in expressing his intention, and for this purpose is considered, in connection with the written declaration, in determining the intention made known by that writing. Bond's Appeal,31 Conn. 183, 190.

Reading Mr. Button's will in the light of the circumstances attending its execution, which remained unchanged until his death, his intention in respect to the defendant Welton is clear. He intended that she should have, after his death, the land described, and also that his executor should appropriate $3,700 of his personal estate for her benefit in the payment of the promissory notes secured by mortgage on the land, for the purpose of discharging the mortgage lien.

The clause of the will devising the land to the defendant Welton, and the clause directing the full payment and discharge of all the testator's debts, must be read together, and read in connection with the fact that at the time the will was executed and at the time it became operative the testator owed three particular debts which, unpaid, were a lien upon the land reducing its value; so read, the will plainly gives to the defendant Welton, in addition to the land described, the right to have these debts fully paid and the damaging lien thus discharged. The law imposes upon an executor the duty of paying his testator's debts, and his payment of a debt secured by mortgage on land specifically devised operates in favor of the devisee to relieve that land from the mortgage lien. When the will expressly directs the payment of a debt secured by mortgage on land specifically devised, it operates as a gift from the testator to the devisee from the general personal assets. In this case the result is the same as if the devise to the defendant Welton of the land at the corner of Davenport and Howard avenues had been followed by an express direction that the mortgage upon it should be paid by the executor. Turner v. Laird, 68 Conn. 198, 200,35 A. 1124; Beard's Appeal, 78 Conn. 481, 484, 62 A. 704.

The appellants contend that the testator by conveying to the defendant Welton, shortly after the execution of his will, the land therein mentioned, then carried out his testamentary bounty and so adeemed his bequest to her. If, as the appellee contends, this conveyance in fact gave to the donee the land free from all incumbrances, the testator would, by thus giving in his lifetime to his legatee all that by his will he had given after death, have adeemed his testamentary gift. But such an ademption would not affect the validity of the trial court's judgment; the decision that it is the duty of the executor to pay these debts would remain unquestionably correct. On the other hand, if the conveyance was in fact, as claimed by the appellants, a gift of the land subject to the mortgages, so that it must be appropriated to the satisfaction of the mortgage debts unless they are paid by the donee, it is clear that the testator has not by such conveyance given to his legatee the interest in his personal estate which he had left her in his will. It is also clear that in making the conveyance he has not so deal with his property as to render impossible the payment for the benefit of the legatee which the will directs. There has not, therefore, been a total ademption of the testator's provision for the defendant Welton. ConnecticutT. S.D. Co. v. Chase, 75 Conn. 683, 690, 55 A. 171.

In this State a will is revoked if, after execution, the testator shall marry, or if a child is born to him, and no provision is made in the will for such contingency, and no will can be revoked, in whole or in part, in any other manner, except by burning, cancelling, tearing, or obliterating it by the testator or by some person in his presence by his direction, or by a later will or codicil. General Statutes, § 297; Miles' Appeal, 68 Conn. 237, 244, 36 A. 39. But a particular bequest, although unrevoked, may become practically inoperative, if the testator in his lifetime gives to his legatee the specific thing which the will directs to be given after his death, or if the testator so deals with property which is specifically bequeathed to a legatee that upon his death the execution of his intention in respect to this legatee is impossible. In such case he is said to adeem his bequest, and the practical result necessarily involved in his act is spoken of as an ademption of the legacy. Where the law recognizes a power of implied revocation by acts of the testator similar to those which must result in ademption, there may in some cases be no distinction between ademption and revocation; but in this State, where such implied revocation is forbidden by statute, the clauses of a will containing a bequest are not revoked by acts which may operate as an ademption, but remain as the legal declaration of the testator's intention to be carried out unless the execution after his death is impossible; and so a present gift of a part only of a testamentary bequest, or a sale or conveyance to a third party of a part only of property specifically bequeathed, does not prevent the execution of the testator's intention as to the remainder, and the ademption is not total but pro tanto. Assuming the appellants' claim as to the legal operation of the "quitclaim" deed to be correct, it is apparent that Mr. Button in his will intended to and did give to the defendant Welton his equity of redemption in the land described, and also intended to and did give to her the right to have the general personal assets of his estate applied to the payment of the mortgage debt and the discharge of the mortgage lien; and that by his "quitclaim" deed he made a present gift to her of his equity of redemption only, and did no act which rendered impossible the execution of the remainder of his testamentary gift. It follows conclusively, that upon his death his mortgage debts remaining unpaid and his general personal assets sufficient to pay them, and the defendant Welton remaining the owner of the equity of redemption, it is the duty of the executor to pay these debts and so discharge the mortgage liens. The testator may have adeemed his gift of the equity of redemption, but he has not adeemed the remainder of his gift. Bradford v. Forbes, 9 Allen (Mass.) 365, 368.

The appellants assign as error certain rulings of the court in the admission of oral evidence tending to show the actual intention of Mr. Button in the execution of his will and deed. Even without this evidence, and upon the documents and facts properly before the court, the conclusion reached by the court is the only legal conclusion from the facts found. The exclusion of the oral evidence could not have benefited the appellants, for the legal conclusion would have been the same; and for the same reason, its admission did not legally harm them. Even if the court failed to apply correctly the law of evidence to the somewhat subtle distinctions involved in the discussion before it, the error did not injuriously affect the appellants and is not ground for a new trial. General Statutes, § 802;New York N.E. R. Co.'s Appeal, 62 Conn. 527, 542,26 A. 122; Baxter v. Camp, 71 Conn. 245, 250, 41 A. 803.

It would seem from the record that the creditors holding the testator's notes secured by the mortgages mentioned, duly presented their claims to the executor within the time required by law and demanded payment thereof, but that fact is not distinctly found. If it be true that such presentation and demand was made, the duty of the executor to pay the claims presented was certain, and if any doubtful question existed it was one which could be fully determined in an action by the executor against the defendant Welton. In such a case resort should not be had to this proceeding for the construction of a will and advice to the executor, with its consequent unnecessary multiplication of parties and depletion of the decedent's estate. Crosby v. Mason, 32 Conn. 482, 484; Miles v.Strong, 62 id. 95, 103, 25 A. 459; Belfield v. Booth,63 Conn. 299, 309, 27 A. 585.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.