White v. Holly , 80 Conn. 438 ( 1908 )

The settlements made by Mrs. Moreau were voluntary, and reserved a right to enjoy the entire income for her life and to dispose of the principal after her death in favor of whom she pleased, as she might "direct, devise, bequeath and appoint" by any instrument in the nature of a will, executed in a manner sufficient under the laws of Connecticut to sustain a devise. If this left her so far in the position of the equitable owner that she could bequeath the fund by will (as to which point we express no opinion), and if the effect of her will which has been admitted to probate is to be determined by the laws of this State, she has made an effectual bequest in favor of the cousins designated in that instrument. Although it was attested by but two witnesses, no more were required by the laws of New York, where it was executed; and by General Statutes, § 293, "all wills executed according to the laws of the state or country where they are executed may be admitted to probate in this state, and shall be effectual to pass any estate of the testator situated in this state."

Whether the will could take effect as such, however, with respect to the fund in question, might depend on the law by which the succession to her personal estate should be regulated, and her domicil at the date of her decease does not clearly appear from the record to have been in Connecticut. Irwin's Appeal, 33 Conn. 128, 136.

But we are of opinion that the case must turn on the adequacy of her exercise of a power of appointment, and that this must be determined by the terms prescribed in the deeds of settlement. What is required by these is the law of the case.

The phrase, customary in the creation of powers of appointment, and employed in the trust deed to the plaintiff, that they may be exercised "by any writing in the nature of a last will and testament," is apt, to meet the case of the possessor of such a power who possesses nothing else. Having no property of his own to dispose of, he has no occasion to make a will. So far as appears on the record, Mrs. Moreau left no property (other than such interest in the principal or income of the trust fund, if any, as might belong to her under the settlement) except some personal apparel, over the disposition of which the Swiss courts have assumed jurisdiction, by virtue of a holographic will executed in Lausanne.

The dispositions made in her New York will purport to include all the property belonging to the testatrix at the time of her death, and also all over which she had "any power of disposition or appointment" by will. If it was executed in the manner prescribed for the instrument serving to exercise the power, its words of gift, devise, and bequest, in connection with the previous statement of an intent to exercise all powers of disposition or appointment, were a sufficient exercise of it. Hollister v. Shaw, 46 Conn. 248,252.

It was so executed. Had she owned real estate in Connecticut, it would have been effectually devised, by virtue of the statute which has been quoted. Two different forms of execution were, at the time when she signed this will, permitted by the statutes of Connecticut for a will of real estate. One or the other of these every testator was required to adopt; for no devise can be effectual unless made in a will executed in conformity with our statutes. General Statutes, § 293. Which of the two should be adopted was left to the option of every testator, in case he signed his will in another State or country. For a person acting under such circumstances, resort to one form was required no more and no less than resort to the other. Mrs. Moreau signed her will in New York and chose to adopt the form which accorded with New York law. It was her right to make such an election, and by force of it the instrument which she executed became a writing in the nature of a will executed according to the forms required by the statutes of Connecticut then applicable to a will of real estate.

It is immaterial to the decision of this cause that the writing has been admitted to probate as a will. Had it not been offered for probate, its effect would have been the same, so far as concerns the execution of the power. Whether Mrs. Moreau had or had not a foreign domicil, the test of the sufficiency of her New York will to execute the power is not whether that will is admissible to probate in Connecticut, but whether it is executed in the way required by Connecticut for wills of real estate. The domicil of Mrs. Moreau at the time of her decease could only be important if it were necessary to determine what law governed the succession to such personal property as she might leave. It is not necessary in this case, because to ascertain such domicil could throw no light on the construction of a paper executed many years before at a place where it has not been contended by any one that she was then domiciled. The paper was a contract by deed. A contract is to be construed according to the law of the place with reference to which it is made. Beggs Co. v.Bartels, 73 Conn. 132, 133, 46 A. 874. The original deed of settlement to Mr. Currey, though made in Providence, was a settlement of funds owned by a Connecticut woman, in such a way as to give her the entire beneficial estate during her life, and a power to determine the disposition of both the legal and equitable estate after her decease. The latest of the deeds of settlement, made in New York, describes her as of this State, and was of a similar character. Each referred to provisions in the laws of Connecticut as rules to be followed in certain particulars in the exercise of the power, and as prescribing, in default of its exercise, the mode of distributing the estate. Each contemplated the appointment of a successor to the trustee named by the grantor "with the advice and consent of the judge or court of probate of the town, city or probate district within which she" should reside at the time of the appointment, and these terms were seemingly chosen in view of the probate system of Connecticut. The law of this State, therefore, was that with reference to which it is to be presumed that the deeds were drawn, and their construction would be the same, even if it were to be assumed that her last domicil was in a foreign country.

There is no error.

In this opinion the other judges concurred.