Whiting's Appeal from Probate , 67 Conn. 379 ( 1896 )

Hamersley, J.

Upon the settlement of the administra-' tion account, it became the duty of the Court of Probate to make an order for the distribution of the residuary personal estate in the hands of the executor. The will of Mrs. Beers gave one half of that estate to the children of John H. Whiting, to be paid over to them upon the settlement of the estate, unless said Whiting should pay, either to the testatrix during her life or to her executor upon demand after her death, the sum of $6,000 (assumed by the will to be due from Whiting to the testatrix); in which event said one half of the residuary estate was to be paid to William E. Downes, to be held in trust during Whiting’s life, and then to be delivered to said children. If in fact the $6,000 had been paid, the estate must be distributed to Downes, trustee; and if it had not been paid the distribution must be to the children of Whiting. The determination of this fact of payment is a necessary incident to the exercise of the power of distribution vested in the Court of Probate; no question of forfeiture of vested rights, or title to property such as has been held to be without the jurisdiction of a court of Probate, was involved. Hal v. Pierson, 63 Conn., 332, 344.

Upon the trial in the Superior Court the appellant offered certain evidence which the court ruled to be inadmissible. Such ruling is the only error assigned in the appeal to this court. The evidence consisted of a memorandum of agreement between the appellant and Mrs. Beers, as explained by the testimony of Whiting and others. The “reasons of appeal” filed in the Superior Court set up this memorandum and the allegations of' the fulfillment of its conditions by Whiting, as the only ground for the appeal from the orders of the Court of Probate. The questions thus presented to the Superior Court were : Have the conditions of the memorandum .of agreement been carried out by Whiting? Is this agreement, together with such execution on his part, a payment of the $6,000 as required by the will?

The record shows that the evidence excluded constituted the appellant’s whole case. The appellees objected to its admission. Under these circumstances it was agreed by counsel that the evidence should be received, and that after-wards the objections to its admissibility might be renewed and the court then rule upon the same. Accordingly the memorandum was read to the court, the appellant was sworn as a witness, examined and cross-examined, and after the whole case of the appellant had been thus heard, the appellees renewed their objections to the evidence, and the court excluded the same. No ground of objection was specified by the appellees, and no reason for exclusion is stated by the court. The appellant’s claim in behalf of the admissibility of the evidence is stated in paragraph 9£ of the finding. It is that the evidence “ tended to show and did show a sufficient compliance with the condition of said will to enable appellant to hold the property therein given to him.” The court overruled this claim, and held that all the testimony did not show a complianQe on the part of the appellant with the condition of the will. The appellant then rested, the appellees offered no evidence, and the court rendered judgment that the appeal be dismissed and that the orders of the Court of Probate be affirmed.

If the admissibility of this testimony had depended on its relevancy to the fact of a settlement between the appellant and the testatrix of his indebtedness to her for the proceeds of the Air Line securities mentioned in the will, it might have been admissible. But its admissibility did not depend on the tendency or sufficiency of the evidence to prove a settlement as claimed by the appellant.

If such settlement were made, it was made some six months prior to the execution of the second codicil of the will, and that codicil was made in view of and with plain reference to the alleged settlement. This is apparent from the record. The will was executed May 2d, 1891. It bequeaths specific sums to three legatees, gives the whole residue, one half to William E. Downes in trust to pay the net income to her granddaughter by marriage, Jennie Downes Whiting, and upon her death to deliver said one half to the children of said Jennie Whiting; and the other half (specially including in that half, as property bequeathed, a debt of $6,000 due from Whiting to the estate) to the children of her grandson John H. Whiting (the appellant). (But if said Whiting shall pay the sum of $6,000 — in the manner above stated — then the ■one half, including the sums so paid, is to go to said Downes in trust to pay the net income to Whiting during his life, and upon his death to deliver the same to his children, in pursuance of the bequest to them.) The will appoints William E. Downes executor.

The first codicil is executed July 27th, 1891; it changes one of the three legacies and republishes the will. October 21st, 1891, the following paper is executed: “ Memorandum of agreement made this 21st day of October, 1891, between Mary Ann Beers and John Whiting, both of New Haven. Whereas, the said John H. Whiting has received from the said Mary Ann Beers the sum of nine thousand dollars, upon which he promises to pay interest to her at the rate of four per cent, so long as she lives, payable quarterly; and it is understood and agreed that if the said John H. Whiting survive her the said principal sum shall be a free gift from the said Mary Ann Beers, and not in any way charged to or accounted for by him, the said John H. Whiting, and that if she, the said Mary Ann Beers, shall survive him the same shall be paid back to her, and not otherwise: Now therefore, to secure such payment it is agreed that he, the said John H. Whiting, shall place in the'hands of Henry Stoddard, Esq., an insurance policy for said sum of nine thousand dollars upon the life of said Whiting and a note for said sum of nine thousand dollars, to be held by him, the said Stoddard, until the death of one or the other of the parties hereto, and to be by him then delivered un to the survivor. Mary Ann Beers. John H. Whiting.”

May 7th, 1892, the second codicil was executed. It revokes “ any will and codicil, and every instrument of a testamentary nature whatever, made or executed since the 27th day of July, A. D. 1891, if any such exists,” and then says: “I hereby re-affirm, establish, and declare the last will and testament executed by me, and dated May 2d, A. D 1891, as modified by the codicil thereto, dated the 27th of July, A.D. 1891, to be my last will and testament; and I hereby ratify and confirm the provisions of said will and said codicil thereto.”

The last codicil executed October 7th, 1892, refers only to two of the legacies ratifying the provisions of the will and codicil.

Republication of a will brings it to date and makes it speak at that time in respect to matters which have arisen between its first execution and the republication. Giddings, Executor, v. Giddings, 65 Conn., 160. It has often been held that a codicil which recognizes the existence of a former will operates as a republication. But in this case the republication is direct. The intent of the testatrix is expressed with unmistakable precision. Since the former will was made she had executed a document which might be claimed as giving to Whiting, in case he survived her, the fund of $6,000 which by the will was bequeathed to his children. She revokes this “instrument of a testamentary nature,” and declares the former will “ to be my last will and testament,” and ratifies and confirms “ the provisions of said will.”

If the testatrix on May 7th, 1892, had executed a new will in which she had referred to the provisions of the former will in relation to Whiting and his children, and to the agreement of October 21st, 1891, and then disposed of her estate by the same language used in her former will, the effect of such new will would be the same as is that of the codicil which she did execute on that day; and the intent of the testatrix to give the $6,000 which on that day (May 7th, 1892) she declares she understood to be due her from Whiting, to her great-grandchildren, and to give Whiting the income of that fund and of other property upon his payment to herself or her executor of the sum of $6,000, would be no more clearly expressed.

It is patent and admitted that if Whiting did owe Mrs. Beers $6,000, as stated in her codicil of May 7th, 1892, he has not paid it since that time. The evidence excluded by the Superior Court was not offered, and could not have been received, for the purpose of altering the clearly expressed meaning of the will; it could only be relevant for the purpose of showing that Whiting was not indebted to the testatrix as stated in her -will. In other words, the appellant undertook to prove that the fund of $6,000 given by the testatrix to her great-grandchildren, coupled with a gift to him in view of such disposition of the fund, was not in fact the property of the testatrix, but was the property of himself. And for such purpose the testimony was wholly irrelevant. If it proved the appellant’s contention, it also proved that he was entitled to take nothing under the will, and that the order of distribution must stand.

Where a will bequeaths property of the testator to a legatee, coupled with a bequest of other property to another, such legatee in setting up any right or claim of his own to such other property, surrenders all interest in the property so bequeathed to him. This rule springs from manifest principles of equity, i. e., maxims of honesty, is firmly settled, and is good in law as well as in equity. Carter's Appeal, 59 Conn., 576, 587 ; Hall v. Pierson, 63 id., 332, 345; 3 Bac. Abr., 314; Watson v. Watson, 128 Mass., 152.

In Cooper v. Cooper, L. R. 6 Ch. App., 15, the facts were somewhat analogous to the facts in this case, and the court says: “She (the testatrix) attempts and purports to give by her will that which was not hers but her children’s. It does not appear to me in any wise material by what previous titles it had become the children’s. At her death they are found to be the true owners of property disposed of by her, and at the same time they are found to be named as objects of her testamentary bounty. That seems to me to state the requisites, and the only requisites for raising the obligation to elect.”

In this case the appellant set up in the Superior Court his own claim to the $6,000 fund the testratrix had bequeathed to his children; it was immaterial whether this claim was well founded or not; he could not enforce it without losing his beneficial interest under the will; and so the evidence offered by him that it was well founded, could not affect the validity of the orders of the Court of Probate, and the appellant cannot complain of its rejection. Whether John H. Whiting can now elect to carry out the provisions of the will and to pay the $6,000 he has refused to pay upon demand, is a question not involved in this proceeding and not considered.

There is no error in the judgment of the Superior Court, and new trial is denied.

In this opinion Andrews, C. J., Torrance and Fenn, Js., concurred.