Havens Appeal from Probate , 69 Conn. 684 ( 1897 )

Hameeslev, J.

The Superior Court has found that the disputed entries are untrue in fact; that no payments were made by the executors to Mrs. Daniels of income from the fund bequeathed to the trustees for her benefit; but that all the payments covered by these entries were in fact made in pursuance of an order of court directing them to be made as an allowance for the support of the widow during the settlement of the estate. The Court of Probate having jurisdiction to make such an order, and no appeal being taken, and the order remaining unrevoked, the executors were fully protected in making the payments and entitled to charge them against the estate in their administration account. General Statutes, § 445. The finding, therefore, justifies the judgment rendered, unless in reaching such conclusion the court be low applied some erroneous principle of law.

The errors in law assigned by the appellants (the executors) all depend upon the determination of their primary claim, to wit: The order making an allowance for the support of the widow, of $416.67 per month, must be construed as limiting the monthly payments authorized to a period of one year from the death of the testator; and all payments made subsequent to the expiration of this period were unwarranted by the order, and illegal. We think the Superior Court did not err in overruling this claim.

The allowance authorized by statute is “ such amount as they (Courts of Probate) may judge necessary for the support of the widow or family of the deceased during the settlement of the estate.” General Statutes, § 604. The petition of Mrs. Daniels “prays that this court allow such amount as it may deem necessary for the support of your petitioner, out of said estate, during the settlement of the same.” Upon this petition the court ordered a hearing to be had, and notice to be given the executors to “ show cause, if any they have, why the prayer of said petition should not be granted; ” and described the petition as “ praying that an allowance be granted for her support during the settlement of said estate.” Upon this petition, in pursuance of this order, a hearing was had and the prayer of the petition was granted, by a judgment recorded as follows: “ Ordered, that four hundred sixteen and sixty-six one hundredths dollars ($416.66) be and the same are allowed per month for the support of the widow.” This order must be read in connection with the statute authorizing it, and in connection with the petition and order of court directing a hearing; so read, it is impossible to construe it otherwise than as a finding by the Court of Probate that the prayer for an allowance out of the estate during the settlement of the same, ought to be granted, and that the amount deemed necessary by the court for the support of the widow during the settlement of the estate is the monthly payment named. In determining, in pursuance of the statute, the amount it judges necessary for the support of the widow during the settlement of the estate, as so many dollars per month, the court necessarily determines that a monthly payment of such sum during the settlement of the estate is the amount it judges necessary for support during that period. No other’ construction is permissible.

Had the court, anticipating the estate would be settled in one year, ordered that five thousand dollars be allowed during settlement, the executors could pay no more, however long the settlement might be delayed, unless a new order should be made. Had the court, anticipating the estate would not be settled in four years, ordered that twenty thousand dollars be allowed, the executors could not pay less, however soon the estate might be settled, unless the order were revoked before payment had been made. But the court, recognizing the uncertainty attending the settlement of a large estate, has determined the amount necessary for the widow’s support during settlement, in accordance with the time the settlement shall consume, and has ordered that so much per month be allowed during settlement. The executors are thereby authorized to make such monthly payments, until the order is modified, revoked, or set aside upon appeal; but no revocation can make illegal, payments previously made in pursuance of the order.

The executors urge two considerations for reading into the order the limitations claimed by them. First, that the Court of Probate having previously made an order limiting twelve months for the settlement of the estate, must be presumed to have contemplated a year’s limitation to the monthly allowance. The first order, limiting a time for settlement, is not intended to and does not control the time that may actually be found necessary or convenient; and in the case of large estates, it frequently happens that the settlement is not accomplished within the limitation of this formal order. The natural presumption is, that the court contemplated the uncertainty of the time that might be taken in the settlement of the estate, and therefore in determining the amount necessary for the widow’s support during settlement, directed a monthly allowance that should proportion the whole amount allowed to the length of time it should be needed. Second, that Mrs. Daniels became entitled to the income of the trust fund bequeathed for her benefit, upon the expiration of twelve months from her husband’s death; and (as claimed in the executors’ brief) “the law of this State is clearly so that a widow’s allowance does not continue after the time she becomes entitled to support from a legacy by the will of her husband.” The order, therefore, is illegal unless construed as limited in operation to one year.

If by this claim the executors merely mean (as seems to be indicated by other portions of their brief) that the power of a Court of Probate, in making an allowance out of the estate for the support of the widow or family of the deceased, is limited to such an amount as the court, in view of all the circumstances, shall deem necessary for their support during the settlement of the estate, the claim is true, but has no application to the present case. The record shows that the court has found that so many dollars per month was, in its judgment, the amount necessary for the support of the widow, in view of her expectations under the will and all the other circumstances. It is immaterial whether or not the Superior Court might, on appeal, take a different view, or whether the Court of Probate, held by the same or some other judge, might now entertain a different view. The fact of making the order, as detailed in the record, involves a finding by the court at that time, that the amount then allowed, authorizing monthly payments so long as the estate remained unsettled, was, in the judgment of the court, necessary for the support of the widow. There is nothing in the record that requires us, as intimated in the argument, to treat the allowance as admittedly passing the limits of necessity. The necessity meant by the statute is, within reasonable limits, a relative one. The amount “necessary” for support must, to a certain extent, depend upon the amount of the estate, as well as other circumstances. The allowance in this case is one that might call for different opinions, but it is not one that a court could not honestly deem “necessary,” within the meaning of the statute; and it should be remembered in this connection, that the allowance was so made that its continuance could be stopped at any time, if occasion should arise, by appropriate action of the court. It is not competent in construing this order, to assume that the Court of Probate exceeded its power, by authorizing an allowance it did not deem necessary. The plain meaning of the order, a meaning which has been acted on by the executors and Court of Probate for four years, cannot be changed in this way.

If, however, this claim of the executors is, as its language would seem to indicate, that an allowance by the Court of Probate for support of the widow, concurrent with her reception of any benefit from the estate, is illegal or contrary to the policy of the State, the claim is untenable, and is not supported by the language of the statute or any decision of this court.

It was the practice, from a very early time in our history, if not from the settlement of the Colony of Connecticut, for the court administering the estate of a deceased person, to make such allowance out of the estate as it deemed proper for the support of the widow or family of the deceased during the settlement of the estate; and this practice became a part of our common law. Wheeler v. Wheeler, 1 Conn. 51, 53. In 1825 the present statute on the subject was passed, and this statute is in confirmation of our common law. Leavenworth v. Marshall, 19 Conn. 408, 417. Such practice is a result of one of the fundamental conditions on which the law takes possession and control of the property of a deceased person. It applies to personal property and not to real estate ; because the law ordinarily gives to the heir at law or the devisees, an immediate right to the latter, and assumes the power of its disposition only when the personal estate is insufficient to pay the debts of the deceased, or for other specified purposes. During the settlement of the estate the personal property is in the hands of the law, charged with the fulfillment of certain legal duties belonging to its former owner at the time of his death; among these are the payment of his debts and the support of his dependent family. To a limited extent the use of the estate for the purpose of that support is even paramount to the payment of debts. Barnum v. Boughton, 55 Conn. 117, 118. Of necessity, the value of the support charged upon the estate must depend in part on the amount of the estate, and the condition and circumstances of the dependent family. Where there is no dependency there can be no dutjr of support. Where the dependency is partial the duty is partial. The necessity of support during settlement may co-exist with the expectancy of future benefit from the estate’; and the present enjoyment of an inadequate income, whether from the estate or otherwise, does not wholly relieve the estate from the duty of support. It is impossible to' lay down fixed rules for the application of such a principle; and so the determination of the amount necessary in each ease for the support of the widow or family during settlement, of the adequacy of any provision made by the will, and of the relation of such provision (whether it takes effect during or subsequent to the settlement of the estate) to the amount that should be allowed, has been left in the first instance to the discretion of the Court of Probate, and upon appeal to the discretion of the Superior Court; and this discretionary action of the Court of Probate cannot be reviewed except upon appeal. Lawrence v. Security Co., 56 Conn. 428, 443. Upon appeal to the Superior Court and proper proceeding in error to this court, the action of the Superior Court may be reviewed, and, if clearly contrary to the radical principles on which such action rests, may be set aside. This was apparently implied in Leavenworth v. Marshall, supra. In that case the widow, who was also the executrix, had received under the will substantially the whole of the personal estate and a life estate in the homestead and home farm, had had actual possession of the whole property during the four years of settlement, and, in rendering her final account as executrix (without any previous order or action of the Court of Probate), had charged the estate a lump sum as paid for her support as “ family,” and a similar sum as paid for interest on her legacy; and having by this process of accounting made her payments as executrix exceed the amount of personal property, had sold under an order of sale a portion of the real estate devised to others, and had applied the proceeds to meet the deficit so created. Upon appeal to the Superior Court from the order of the Court of Probate allowing this account, and from its order for the sale of the real estate, and motion in error to this court, it was held that the Superior Court erred in affirming the allowance of the administration account. And, speaking with special reference to the facts of that case, the court said, p. 418: “ The power of taking the property of an heir or devisees, and appropriating it for the benefit of others, without the consent of the owner, ought to be cautiously exercised, and never carried beyond the necessary requirements of the case. The true rule upon this subject is this : Wherever the widow and family of a deceased person have adequate provision made for their support, either by will or in any other manner, they are not entitled to a support out of the shares of others, who are not members of the family.” As a rule of guidance to the Superior Court in acting on the facts disclosed in that case, the language is appropriate ; but it cannot be held (as claimed by the executors) to support the theory that either the law or policy of this State is inconsistent with an allowance (concurrent with some provision by the will) for such amount as the court deems, under the circumstances, necessary for the support of the family during the settlement of the estate. The reasons which justify such an allowance, and should in general control the court in determining its amount, are better and more fully stated by Judge Loomis, in an opinion given in deciding a case tried in the Superior Court for Tolland County, September term, 1888. “It (the allowance) has never depended on the certainty or probability of the wife’s receiving something upon the distribution of the estate. There may have been no real estate in which she could take dower, and the estate may have been insolvent, leaving nothing for distribution after the payment of debts, perhaps not enough even for the payment of the debts, so that the allowance to the widow may have come wholly out of the creditors. The allowance to a widow for her support is in the nature of a continuance of the support after the husband’s death which he or his estate had furnished her before his death. But for it the widow and family, even where there is ample estate, might be subjected to great inconvenience and perhaps brought into an extremity. There is at first no legal certainty as to the condition of the estate, and until that certainty is arrived at by the completion of the settlement of the estate, the widow and family keep on, ordinarily in the home where they have lived, supported by a reasonable allowance from the estate.” Baker’s Appeal, 56 Conn. 586, 588. We think the considerations urged by the executors do not justify the construction of the order of the Court of Probate claimed by them.

The executors contend “that the real controversy in this appeal was between the representatives of Mrs. Daniels on the one hand, and the beneficiaries in the residuary estate of Mr. Daniels upon the other; ” and apparently the Court of Probate took the same view in allowing the executors’ account, and attempted to settle this controversy under the form of authorizing the contested entries. If it be so, that the residuary legatees might be entitled in equity to have some portion of the payments by the executors to Mrs. Daniels, set off against a claim of her legal representatives for interest on the trust fund which was due her and never paid, it is plain the Court of Probate has no jurisdiction to grant such relief in the manner attempted.

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

In this opinion the other judges concurred.