Citation Numbers: 43 A. 492, 72 Conn. 29, 1899 Conn. LEXIS 127
Judges: Andrews, Torrance, Baldwin, Hamersley, Hall
Filed Date: 6/1/1899
Status: Precedential
Modified Date: 10/19/2024
The residuary clause created an estate tail by implication in the testator's grandson, both as to the real *Page 31
and personal estate, and gave the Congregational Society a contingent remainder in the real estate, dependent upon the decease of the first taker without leaving surviving issue, and an interest by way of executory devise in the personal estate.Hudson v. Wadsworth,
The provision that "at the death of said Arthur H. Upham the proceeds of the same shall be paid to the" society, did not require the conversion of the property into money. The will was inartificially drawn, but its meaning is plain. Whatever Arthur takes, and all reinvestments thereof, should he die leaving surviving issue, will become their absolute estate. General Statutes, § 2952. Should he die leaving no issue, it will become the absolute estate of the society. The insurance money which has been collected goes as the land goes, and is to be treated as real estate. The limitation over "at" Arthur's death treats that event as certain to occur, and the subsequent proviso contemplates no other contingency than that in respect to his leaving surviving issue. Had the testator wished the society to take only in case Arthur should die before him and without issue, some such words as "in case of" his death, "if he should die," or "should he die," would naturally have been used. Lawlor v. Holohan,
It follows that the Superior Court was correct in its construction of the will, and also in adjudging that the plaintiff should turn over the residuary estate, including the insurance money, to the guardian of Arthur H. Upham to hold and manage during the latter's minority, and that on his majority he "will be entitled to the possession and management of the whole of said estate during his life, without giving a bond under § 559 of the General Statutes; but a court of equity may at any time while the estate is in the hands of the guardian or of Upham, upon proper application, order *Page 32 security to be given for the preservation of the estate, if there is danger of the secreting of or removal of the personal estate, including the insurance money, from the State."
One of the claims for relief in the complaint was "that the sums to be allowed out of said estate to the several parties hereto, for their expenses and counsel fees, may be fixed by the court." The statute regulating suits of this nature provides that there shall be allowed to each party such reasonable sums for expenses and counsel fees, as the "court, in its discretion, shall deem proper; which allowance shall be taxed as costs in the cause." General Statutes, § 1124. The judgment file in the cause, which was signed by the clerk, concludes thus: "and it is further ordered that reasonable allowance for costs be made."
The determination of the proper allowances to be made under the statute is a judicial act, incident to the final adjudication of the cause. It cannot, like the taxation of ordinary costs, the items and amounts of which are definitely fixed by statute, be delegated to the clerk, or left to the agreement of the parties.
The judgment appears to have been entered as the final judgment in the cause, and as such only could be made the subject of this appeal. It therefore cannot be hereafter extended, or enlarged, and the order that a reasonable allowance for costs be made is incapable of execution, and must be treated as surplusage. No such allowance can ever be made except as an integral and specific part of the judgment of the court, and in such case the judgment file must be signed by the judge.
We deem it proper to add that the statute authorizing such allowances was enacted soon after the publication of our opinion in Crosby v. Mason,
There is no error.
In this opinion the other judges concurred.
Calder's Estate , 343 Pa. 30 ( 1941 )
Central Hanover Bank & Trust Co. v. Mason , 129 Conn. 350 ( 1942 )
Thames Bank & Trust Co. v. Adams , 125 Conn. 656 ( 1939 )
Bronson v. Pinney , 130 Conn. 262 ( 1943 )
Gardner's Appeal From Probate , 81 Conn. 171 ( 1908 )
Northeastern Gas Transmission Co. v. Tersana Acres, Inc. , 20 Conn. Super. Ct. 445 ( 1957 )
Hartford National Bank & Trust Co. v. VonZiegesar , 154 Conn. 352 ( 1966 )
Rudkin v. Rand , 88 Conn. 292 ( 1914 )
Strong v. Elliott , 84 Conn. 665 ( 1911 )
Chase National Bank v. Schleussner , 117 Conn. 370 ( 1933 )
Morgan v. Morgan , 104 Conn. 412 ( 1926 )
Griswold v. First National Bank , 134 Conn. 410 ( 1948 )