Gardner's Appeal From Probate

The property of the estate of Frank C. Shipman, deceased, awaiting distribution as intestate estate, consists of both real and personal estate. The order of distribution appealed from divides it all among the next of kin of the intestate. Certain other persons, the appellants, further removed from him in kinship, claim to be entitled to have portions of the property distributed to them by virtue of that part of § 398 of the General Statutes which provides for the descent and distribution of such real estate of an intestate as came to him by descent, gift, or devise from a kinsman. The appellants rest this claim upon (1) their kinship to Henry A. Shipman; (2) the ownership by Henry A. Shipman, at his death, of certain real estate; (3) the descent, by virtue of Henry A. Shipman's will, of such real estate, or that for which it stands, subject to created but now terminated trusts, directly from him to Frank C. Shipman, his son; and (4) the presence in the estate of the latter awaiting distribution, of certain moneys or bank deposits which, as being or representing the proceeds of the sale of said real estate, should, it is contended, be regarded in law and equity as the very real estate left by the testator.

In making application of the statutory provisions thus invoked, we are required "to look to the immediate descent and immediate ancestor, rather than to a remote descent and a remote ancestor." Clark v. Shailer,46 Conn. 119, 123. The parties are in contention as to whether this requirement of the law is satisfied as to the larger part of the funds in controversy, whatever character be given to them, so that Henry A. Shipman, through whom the appellants alone claim, and not the intestate's predeceased brothers, can be regarded as the immediate source from which the intestate received it. We have no occasion, as will later appear, to pass upon this matter. Some portion of the property did come to the intestate by the direct operation of his father's will, and a question underlying this whole case is thus presented.

The property to which the appellants lay claim is, and came to the intestate's estate as, personalty, being cash on hand or in bank. It amounts to $14,500. Of this sum $7,000 was, the appellants' contention assumes, the proceeds of sales by the trustee under the father's will of two pieces of real estate left by him and forming a part of the trust fund created by the will. The remaining $7,500 was, as is similarly assumed, the proceeds of the sale by the trustee of an undivided half of another piece of real estate also left by the testator and included in said fund. The first-named pieces were sold in 1886 and 1893, without action by the Court of Probate; the last named was sold in 1904, following an order of the court. As to all this money so received by the trustee from the sale of real estate and by him, upon the termination of the trust, turned over, as is said, to the estate of Frank C. Shipman, it is asserted that it should be treated as the real estate sold would be treated had no sale been made and that identical property now appeared among the assets of the intestate's estate. The general rule is that property is transmitted according to the form in which it exists at the time of the death of the owner, but the principle now invoked is a recognized one as applicable to certain conditions. Horton v. Upham, 72 Conn. 29, 31, 43 A. 492; Chapin,Petitioner, 148 Mass. 588, 591, 20 N.E. 195; Smith v. Bayright,34 N.J. Eq. 424, 427. It remains to inquire if those conditions are present here.

The question which this contention first prompts is one as to whether, in view of the financial record of the fund, there is justification for the assumption which lies at the foundation of the argument presented, that the proceeds of these sales of real estate can with reasonable certainty be traced to the funds which were turned over by the trustee after the death of Frank C. Shipman. Let this fact, however, be assumed, and the argument advanced on behalf of the appellants must nevertheless fail.

The will provides that the trustees thereunder should have full power and authority to sell and convey any part or portion of the testator's estate that should be necessary to execute the provisions of the trust, but that all investments should be made in the safest and most careful manner. Here is no mere power to change investments. In Bristol v.Austin, 40 Conn. 438, where a life beneficiary was given the power to sell, it was held that the intent of the testator was to confer the discretionary power to make a legal conversion of the estate from real to personal and vice versa, so as to change its character for all purposes and so to all parties interested. Here we have a case where the like intent on the part of the testator is much more strongly manifested, and this intent must govern. This testator was providing an elaborate scheme of benefaction which would quite probably, if not certainly, require for the accomplishment of his plan the sale of portions, or all, of his real estate. He was providing for expenditures by the trustee from the corpus of his estate for the care, support and education of his children during minority, and divisions thereof to each in repeated partial payments year by year for a period of years after majority. More than one third of his not large estate consisted of realty. He must, therefore, have anticipated that exigencies would, in the natural course of things, arise, when to meet the situation presented the conversion of real estate into money would be a necessity. It was doubtless the anticipation of this fact which led him to give the trustee the power of sale so essential to the execution of this trust. Other prudential considerations may have been present in his mind and other benefits sought, but the terms of the will point too unerringly to that which has been indicated as being the mainspring of his action and his chief end in view, for his motive and intention to be undiscovered. Once discovered, and the scheme of his giving being borne in mind, it is apparent that he not only contemplated the necessity of conversions as an incident of the execution of the trust, but also expected and intended that his estate should be shared by his beneficiaries in its changed form. In the situation which he created and in which he placed his trustee, it is impossible to believe that when he gave the power of sale he did not contemplate and intend that whatever new form his estate should take on by reason of the exercise of the authority given, it, and nothing else, should for the future represent in the fullest sense his estate, and express its real character in all its relations, for all purposes and as to all parties concerned. He could not have entertained the idea that his real estate, as such, was to be preserved or go to his beneficiaries. The situation as respects the proceeds of the sales in 1886 and 1893, which were made in the exercise of the power conferred by the will and by no other authority, is therefore one in which it would seem that the character of personalty must, for the purposes of the distribution of it as the estate of Frank C. Shipman, into which it has come, attach to it. Bristol v.Austin, 40 Conn. 438, 449; Gray v. Whittemore, 192 Mass. 367, 384,78 N.E. 422.

But it is said that it does not appear that there was any necessity for these sales, and therefore that it does not appear that the power was properly exercised. The contrary, however, does not appear, and the regularity of the trustee's conduct will, in the absence of countervailing proof, be presumed. Beers v. Narramore, 61 Conn. 13, 24,22 A. 1061; Skiff v. Stoddard, 63 Conn. 198, 227, 26 A. 874, 28 id. 104. Moreover, Frank C. Shipman during the last ten years of his life was of full age and capacity and had an interest in the trust fund as a remainder man, and for the last four or five years of that period as the sole remainder man. During all this time he not only made no objection to the act of the trustee, but from time to time down to his death received from the trustee the fruits of his action. After this period of silence and acquiescence on the part of the intestate, those who have no other interest than as claimants to his estate cannot now be heard to raise an objection to the propriety of the trustee's action which the intestate never made. His acquiescence thus indicated must, apart from the finding of the court as to his ratification and confirmation, be regarded as expressing his approval of the change in the character of the fund and his co-operation in the destruction of the ancestral character of any of it which unconverted might have partaken of that character. Smith v.Bayright, 34 N.J. Eq. 424, 427.

The sale in 1904 was preceded by action of the Court of Probate and an order of sale issued by that court. It was, nevertheless, as distinctly an exercise of the power contained in the will as were the two sales which had no such accompaniment. The application to the court was not one made under the statute (General Statutes, § 253), independently of the will and to secure independent judicial authority to sell. The proceedings contain sufficient internal evidences of that fact to require no reinforcement by external considerations, which are also apparent. They were manifestly had to secure adjudication of the existence of the necessity upon which the will conditions the right to sell. The primal source of the power which was exercised is that found in the will. The fitness of the occasion for the exercise of that power was alone brought to the adjudication of the court. The sale of 1904 had, therefore, the same effect in accomplishing a change in the character of the estate for all purposes as did those of an earlier date.

The objections made to the finding need not, in view of our conclusions, be considered.

There is no error.

In this opinion the other judges concurred.