COLT t1. COLT.
885
CoLT
et 01.
t1. COLT
(CircuU Court, D. Connecticut. July 22, 1881.)
I.
CoNSTRUOTION 011' WILLS-CODIOIL-REVOOATJON 011' BEQUEST.
A will gave to each of several legatees a specified number of shares of stock in a manufacturing company, includin/il" a bequest of 500 shares to testator's brother for life, and then provided that the residue of such stock owned by the testator ",t the time of bis deatb "shall be divided among tbe several persons and parties to whom I have hereinbefore given legacies of stock, in the ratio and proportion in wbich said legacies of stock are hereinbefore given; * * * meaning that my residullryestate in said stock sballbe shared by tbe same persons to whom I have /il"iven specified legacies in stock, aDd in precisely the same ratable proportions." By a codicil testator provided that" I also revoke and cancel, for reasons growing out O,f his late unbrotherly conduct towards me, the legacy of 500 shares of the stock * *, * '/il"iven in the aforesaidwiU" to his brotber. Hela, that the proportional part of tbe residuary stock which would fall to the brotber by virtue of the specifl.o was separate and independent from it, and hence was not revoked by the , revocation of tbe latter.
B.
SUfE-REVOOATION 011' ,TRUST.
Tbe will also gave to the executors and their successors 500 sbares of such stock, "in trust for the issue"of sucb brother, "tbe profl.ts and dividends thereof to be applied to the education ,of his said issue * * * ,until the youngest surviving of said issue ,sball have reacbed the age of 21 years," when the stock and the accumulations thereof should go to them in equal proportions absolutely. By a second codioil testator gave to each child of the said brother a legacy of $100, and then declared that "I berebycancel and wholly revoke any and all other legacies or clevises by' Die' heretofore at any time made to or for the use and benefit of said cbil<lren, or any of them; - -*and I hereby give"l to certain children of a different brother "the property, to-wit, 500 sbares" of sucb stock, "whicb in and by said origilial will isbeq,ueathed to my executors in trust for the use" of the children of the first mentioned brother, "to be beld by my executors for said cbildren in the same manner, and subject to tbe same limitations, as are provided in said original will in the bequest to tbe chilCiren" Of the first-mentioned brotber. Held. that this was not a mere,substitution of the c/lildrfiln of one brother for tbose of the other, the title remalDillg ill the trustees, but was a complete revocation of all legacies given to the one set of children, including their proportional part of the residue of stock, and operated to divest tbe title of the trustees, and revest it in them in favor of the other set; and hence this change did not carry with it any proportional part of the residue of stock, under the provision of the original will. Where a will bequeaths property to tj:J.e executors, in trust for certain legatees, and an action is brought byanotber legatee to construe tbe will, service upon the executors Simply as such is sufficient to also make them parties in their capacity as trustees, and In that capacity they are bound by the decree.
8.
BAJ,lE-SUIT TO CONSTRUE-P.a.RTJES-EXEOUTORS AS TRUSTEES.
f. JUDGMENT-COLLATERAL ATTACK.
In an action in a state court which had jurisdiction of the subject-matter, an order was made finding as facts that certain minor defendants and their guardian had been served with process, tbat "the parties appeared by their respectiye counsel, an'd tbe said mil/ors were dUly represented by their guardians." Subsequent orders and decrees recited tbat the "respondents" and the "parties .. appeared by their counsel, filed their answer, eto. Beld that, while these orders and, deorees stand unimpeached by direct proceedings in the state court, tbe questions therein determined cannot be raised in an independent suit in a federal court,' on the ground tbat the minors were not in fact represented by counsel. In an action in a state court having jUrisdiction of the subject-matter, an order which finds that certain minor defendants "were dUly represented by their guardian" is conclusive, until set aside by direct proceedings, that they were prpperly represented; and, in a collateral action, a federal court will not entertain gestion that, under the state law, the general guardian had no power to represent tbe minors, and that they were not bound by the decree because no guardian ad litem was appointed. Aftirmed in 4 Sup. Ct. Rep. 553.
BAJ.IE-GUARDlAN AD LITEM.
v.481'.no.6-25
FEDERAL
vol. 48.
In Equity. Suit to recover certain shares of stock of the Colt's Patent Fire-Arms Manufacturing Compllny. A. Payne, T. W. Dwight, L. a. A8hley, and S. E. Baldwin, for plaintiffs. , George G. Sill, fot defendants. children of James B. Colt. A. P. Hyde and a. E. Perkins, for other defendants. BLATCHFORD, Circuit Judge. This case questions arising under the will of Samuel Colt and the codicils thereto. The will was executed June 6,1856. Only certain provisions in the will and the codicils need be noticed. . The only property involved in this suit are shares of the capital stock of Colt's Patent Fire-Arms Manufacturing Company, and the dividerids thereon., That company was a corporation. Its capital stock consisted of ,10;000 shares, of $100 each, of which the testator owned '1},996 at of his death. He died January 10, 1862. The will gave to his wife, the defendant Elizabeth H. Colt, a gross legacy of money, and "the use and improvement, during her life," of 1,000 shares of Said stock;' f!.rid', subject to..$ll,id bequest, it gave said stock to the children which should thereafter be born to him in lawful wedlock, and their heirs, as an estate ,in fee-simple. , !talso gave to each of the children who m'ightthereafter be born to him in lawful wedlock 500 shares of said Eltock. It also gave to his brother James B. Colt "the use and improvement, during his life," of 500 shares of said stock, and, after the death of his said brother, "to his issue lawfully begotten, as an absolute estate," on condition that said James B. Colt should "waive and relinquish all claims and demands, actual or pretended," which hemight have against the testator or against said company. It also gave to his executQI1S, and their successors in said office, 500 shares of said stock, "in trust for the issue of said James B. Colt lawfully begotten, the profits and dividends thereof to be applied to the education of his said issue, 80 far as the same may be necessary for that purpose; until the youngest surviving of said illsue shall have reached the age of 2.1 years,whensaid stock, apd all accumulations thereof; if any, shall go to said issue, in equal proportions, as an absolute estate." It also gave to the, defendant Samuel C. Colt a legacy of money in gross, and 500 shares ,of said stock. It also gave to the plaintiff Isabella De Wolf Colt (now the wife of the plaintiff Frank E. De Wolf) a legacy of money i.n gross, and 100 shares 'of said stock, she being a'liaughter of his late hrother, Christopher Coltjand to each of the other children of his said brother Ohristopher Colt a, legacy of money in gross, and 100 shares of said stock. It also gave to L. P. Sargeant, under certain contingencies, 50 shares of said stockjand to E. K. Root, under certain contingencies,60 shares of said stock; and toM. Joslin, under certain contingencies, 50 shares ofsaidstockj ana to J. Deane Alden, under certain contingencies, 25 shares orsBid stock. It also gave to certain persons, as trustees, 2,500 shares of said stock, to establish a school for the education of practical mechanics and engineers. It fllsogave "t9 each of my
387
executors hereinafter appointed" 50 shares of said The will then, proceeded: "All the rest and of my 8ijtate, of every kind and description. not of, I give, bequeath. and devise as follows: All the remainblg'$tocll;of said Colt's Patent Fire-Arms Manufacturing, Company of which I shi'jJdfepossessed shall be divided among the several persons and parties towb!?/p 1 have hereinbefore given legacies of stock, in the ratio and proportion in ,which said legacies of stock are hereinbefore given. All my other rashall be divided amongst the several persons to whom I have hereinbefore given pecuniary legacies in gross, in the ratio and proportion in which I have hereinbefore given such. pecuniary legacies, weaning that my residuary estate in said stock s1Jall be shared by the same persons to whom 1 have specified legacies in stock, and in precisely the same ratable proportions. and that my other residuary estate shall be sbaredby the same persQns to whom I have given. gross pecuniary lellacies.and in precisely the same ratable proportions. I hereby nominate and appoint. my wife, Elizabeth Hart Colt, and my friends Richard D. Hubbard and Henry C. Deming, of said city of Hartford, to be executors of this will, with all such powers and authorities as may be necessary to execute the same; and, in case my wife shall deqline this trust, I hereby nominate and appoint Richard W. H. Jarvis, of Middletown, Conn.. in her stead, and, in case thellffice of either of said executors shall become vacant by death, resignation, or otherwise, at any time thereafter, I hereby authorize and empower my survi ving or remaining executors to nominate and appoint a successor to fill said vacancy. And to each of said executors, in compensation for tlervices in the execution this trust. I hereby give and bequeath, in addition to the legacy and devise hereinbefore given, one-fourth of one per cent. of the cash value of my whole estate." On the 12th of January, 1858, the testator executed a codicil to said will, which contained the following provisions: "I also revoke and cancel. for reasons growing out of his late unbrotherly conduct towards me. the legacy of 500 shares of the stock of Colt's Patent Fire-Arms Manufacturing Company, given in the aforesaill will to James B. Colt for life, remainder to his children; and, in lieu thereof, I give and be· queath said 500 shart's of stock to the trustees named in said will, for Counding a schuol f,?r practical mechanics and engineers, subject to the uses and trusts created in said will for that purpose."
It also gave to J. Deane Alden 50 shares of said stock, in lieu of 25 shares named in said will, subject to conditions named in said will. It also revoked the appointment of Henry C. Deming as executor, and appointed in his place R. W. H. Jarvis. It then continued: "I also revoke and cancel the legacy given in said original will to the \)hildren of my late brother, Christopher Colt, so far as the oldest son of my said brother is concerned, and so far only; lind in lieu thereof I give and bequeath to said oldest son one-fourth part of what he would have received if the legacy to him in said original will bad not been revoked." On the 2dofFebruary, 1859, the testator executed a second codicil
to said will, which stated that it was in addition to said codicil of January 12, 1858. It canceled and revoked the legacy made by the original will and codicil to trustees for founding said school. It also contained the following provisions:
388
FEDERAL REPORTER,
vol.
48.
.. "1 hereby give and bequeath to each of the children of JamesB. Colt a legacy ot one hundred dollars, and I hereby cancel and wholly revoke auy and all other legacies or devises by me heretofore at any ti me made to or for tbe use and·'beneflt of said cbildren, or; any of them. I give to the oldest son of my brother Christopher Colt a legacy of one hundred dollars, and 110 more, and all legacies heretofore made in bis favor are canceled and revoked; and I bereby give, bequeath, and devise to the other children of my said brother (said eldest son not being.included herein) the property, to-wit, the hundred shares afthe stock of the Colt's Patent Fire.ArmsManufacturing Company, which in and by said original will is bequeathed to my executors in trust for the use of the children of said James B. Colt, to have and to hold to said other children of the said Christopher in equal proportions. This last be· quest is in trust for said children; and the property hereby bequeathed is to be held by my executors for said children in the same manner, and Rubject to the same limitations, as are provided in said original will in the bequest to the cbildren of said James B. Colt. And I hereby contlrm and establish said original .will, as altered, changed, and moditled by tbis and the previous codcil.as and for my last will and testament. " .
The will and the two codicils were prmred and approved, and ordered to be recorded in the probate office of the probate court within and for thEl county of Hartford, in the state of Connecticut, on the 6th of February, 1'862. The bill in this case is filed by Theodora G. Colt, widow of said Christopher Colt, (as assignee of the interest of Edward D. Colt, qeceased, who was her son and a80n of said Christopher Colt,) and by Le Baron B. Colt, Samuel P. Colt, and Isabella' De Wolf Colt, (three children of said Christopher Colt,) in their own right, and by Frank E. De Wolf, husband of said Isabella. The oldest son of said Christopher Colt was (jeorge D. W. Colt. At the time of the death of the testator, the said Isabella was of nge, and the said Edward D., Le Baron B.. , and Samuel P. were minors. Edward D. became of age on the 28th of May, 1865, LeBaron B.. on the 25th of June, 1867, and Samuel P.on the 10th of January, 1873. The said Theodora G. Colt was, as early as January, 1863, appointed by the said probate court the generafguarclian of the persons and estates of said Ed ward. D., La Baron B., ana. Samuel P. Letters testamentary on said will and codicils were issued by said probate court to Elizabeth H. Colt, Richard D. Hubbard, .and Richard W. H. Jarvis. Four children were born to the testatol' and Elizabeth H. Colt. 'l'wo of them, Samuel J. and Elizabeth E., died withont issue, after the execution of the codicils, and before the death of the testator. One ·of them, Henrietta J. ,died without issue, a few days after the d.eath of the testator. The said Elizabeth H. Colt became her administratrix. The fourth child, Caldwell H. Colt, is still living. While he was a minor, the said Elizabeth H. Colt was his J oslin and Alden, named in the will, died before the testator. . Onthe)st of June, 1864, the said James B. Colt brought a suit in equity in the superior court of the state of Connecticut for the county of Hartford, The suit was commenced by a petition. It set forth a of each of the two codicils. It claimed· that copy of. the James B. Colt had thereunder an interest absolutely or for his life, in
COLT '11. COLT.
389
such proportion of the excess of the stock of said company owned by the testator at the time of his death, above the amount of stock disposed orin said will, as 500 shares bears to the whole amount oflegacies thereof given in said will. It set forth the names of the persons then living who were interested in the 9,996 shares. It set forth, as so interested, llmong others, Isabella De Wolf Colt, (then unmarried,) and the said Edward D., Le Baron B., and Samuel P., and averred that Theodora D. Colt (who is the same person as the plaintiff Theodora G.. Colt) was the guardian of the last-named three persons; that the inventory of the estate ampunted to 83,257,.644.63; that none of said stock, or the dividends thereon, would be needed to pay debts, and all thereof could be transferred and paid over to the legatees entitled thereto; that the executors had received dividends on the stock in which the peo titionerwas interested, but they denied that he had any interest in any of said stock or dividends; and that the amount of the stock and dividends to which he was entitled was over 8200,000. The petition went on to say: .. And this petitioner avers that the respondents to this petition, and each at them, have, or claim to have, some interest, either legal or beneficial, in said residuary portion of said stock, and that it is necessary that they. and each of them. should be made parties to this proceeding, that their respective rights in said residuum may be so ascertained and fixed as to be binding on all said parties." The petition prayed that the court would "ascertain and fix the amount of said residuum, and the parties entitled thereto, and their proportions under said will," and that the executors pay to the petitioner the dividends already collected or due, with interest, belolJging to the shares of stock in which he held an interest under said will, and that he have the future dividends thereon. On this petition process was issued by a tice of the peace, the summoning Of the following persons named in the process to appear before. said superior court on the third. Tuesday of July, 1864, to answer unto the foregoing petition, and show cause why its prayer should not bEl granted: Elizabeth H. Colt, as claiming an interest under said will, and as executrix of it, and as trix of Henrietta J. Colt, add as guardian of Caldwell H. Colt; Richard D. Hubbard, as claiming an interest under said will, and as executor of it; Richm'd W. H. Jarvis, as claiming an interest under said will, and as executor 9f it; E. K. Root; Henry C. Deming; Caldwell H. Colt; Isabella De Wolf Colt; Le Baron B. Colt; Edward D. Colt; Samuel P. Colt; Theodora D. Colt, guardian of the last-named three persons; Samuel C. Colt; and Luther P. Sargeant. The record of said suit in equity shows that, the petition and the summons thereon were personally served, on the 2d ()f June, 1864, on the said Elizabeth H. Colt, RichardD. Hubbard, Richard W. H. Jarvis, E. K. Root, Henry C. Deming, Caldwell H. Colt, Isabella De Wolf Colt, Le Baron B. Colt, Edward .D. Colt, SamueIP.'Colt, TheodoraD. Colt, and' Samuel C. Colt, and on the 29th o(Jtine, 1864, on the said Luther P. Sargeant. At the September term" 1865, of court an order was made by it, reciting that said
890
FEDERAl. nEPORTER,
by Jamcs;B.Colt against the 13 respondents be.f9re named,to said court, at said July terin, 1864\:and .reciting the subthe cOntents of said peti"tion,aild referring'to it as on file, and then stating that"Tbis!cGurt doth find that thelldidpetition was dUly served and returned to this term thereof holdc,mon the third Tuesday of July; A. D. Itl64, wheR thepartil's appeared by the,ir respective counsel, aodthe said minors were duly represented by their and tlJe said cause was contin ued to - - - ', when the respondl'ntsflled a dE-murrer to said pet'ition. and the parties were at issue thereon. ahd' 'this court, having heard them by their reinsufficit>nt, and ovel'i'uled the same. spective counsel, adjudgl'd said and ordered the respulJdenlS, to ,answer over. and, by legal removes and cootinuapces. the petition comes.f,Q the present term of this court, When the parties and are at is/me IIpon a general denial of· the allegations in the plaintiff's bill as on file. and now the court, after due inqUiry and examination made, doth find as follows::: . The order then set forth the will and the codicils, and the status of the stock and the parties, as before stated, with the fact that Edward D. Colt had, since the last term of the court, arrived at his majority, and that the executors had refused to pay over to James B. Colt any part of the dividends on sllidstock, because they were advised that, under the will and the codicils, he took no interest inElaid stock, or, if otherwise, that the nature and extent of his interest was so uncertain that they could not safely transfer said stock, or any interest tqerein, or pay the dividends thereon to him, until advised by the judgment of the courtin respect to the pature apd extent of said interest; and also because the time allowed by the court of probate for the settlement of the estate had not expired. The order then proceeded: ('ourt reserves for the advice of the supreme court of errors next to be holden in the county ·of Hartford the following questions arising on the foregoing record: (1) Whether the interest taken in the residuum by James B. Colt is a life-estate oran estate in fee .. (2) Whether said Colt shall receive ill.terest upoll. the dividends made on his residuary stock, and, if so, from what time. (3) Have thelegacies which the children of the testator who de- ceased in his life-time would have taken had they survived him lapsed. or are they to be considered and treated as intestate estate? (4) Do the said children of Christopher Colt take any share in the residuum of stock in respect to their legacy of 500 shares given to them in the codicil to said will? (5) Do the saidR. W. R. Jarvis and H. C. Deming both take a legacy of stQck under said will. or only one of them, or neither of them? (6) What is the amount of the residuum of stock, and who are entitled thereto, and in what proportions? This court also reserves all other questions arising upon the record, and also the question as to what decree shall be passed in this suit." The said supreme court of errors, at its February term, 1866, for Hartford county, made an order in said suit in equity, reciting the parties, a.8 before named, and the Jeservation of said questions for its consideration and advice, and thetiproceeding: "And now, said parties having been fully heard, this court doth conSider, and doth advise said superior COlll't: (1) That the interest of James B. Colt in. the residuum of stock is a life-estate only. (2) That James B. Colt is not to receive iJ)till1est on the dividends of:atock, unless the superior court, on
COLT tI, COLT.
391
inquiry, lind that interest bas been made by the executors, or the money has been used by theIll or by the Arms Company in their business, so that they rna;, fairly be said to have made interest upon the money, either directly or otherwise. (3) That the legacies to the deceased children who died before the testator are to be treated as intestate estate. (4) That the children of Christopher Colt do not take any share in the residuum or stock, in respect to thdr legacy of 500 shares given to them in the codicil to said will. (5) Jarvis takes, Deming does Dot. (6) The amount of refliduulD of stock is 5,346 shares, of which Mrs. S. Colt takes 1.149 21-31; J. B. Colt, for life, 57426-31; Samuel C. Colt, 574 26-31; Henrietta Colt, deceased, 57426-31; Elizabeth E. Colt, deceased, 57426-31; Samuel J. Colt, deceased, 57426-31; Christopher's children, 459 27-31; Caldwell H. Colt, 57426-31; R. D. Hubbard, executor, 57 15·31; R. W. H. Jarvis, p,xecutor, 57 15-31; Mrs. E. H. Colt, executor, 57 15-31: L. P. Sargeant, 57 15·31; E. K. Root, 57 15·31," At the March term, 1860, of the said superior court,a final decree was made by it, reciting' that the said petition of James B. Colt was brought to the term of said court held on the third Tuesday of July, 1864, "to whioh court the same was when and where the petitioner appeared, and the respondents also appeared;" that "the respondents thereupon demurred to the sufficiency of eaid petition, which demurrer was overruled, and, by legal continuances, the said action came to the term of said court holden on the fourth Tuesday of September, D. 1865, when and where the respondents filed their answer, as on file, and this court, upon So hearing, found the following facts, as proved in said case:" The decree then quotes the findings contained in said prior order, made at the September term, 1865, including the matter before quoted herein from said prior order, and states the reservation, for the advice of t.he supreme court of errors, of the six questions before set forth t in' the terms before quoted herein from said prior order, and then proceeds: .. And' now, in pursuance of the advice of tbe supreme court of errors, given upon the reservation aforesaid, and upon further hearing before this court upon the question of interest upon dividends hllretoforl\ declared, this court doth order, adjudge, and decree as follows, viz.: that the legacies by said will to cel'tain children of the testator who deceased before .him are to be treated as intestate estate: that the children of Christopher Colt do not take any share in the residuum of stoek in respect to their legacy of five hundred shares of said stock given to said executors in trust for him In the codicil of said will; that the said HenryC. Deming does not take under said will the legacy of fifty sbareE\ given by said will to each of the executors thereof, nor does he take any interest in tbe residuum; but the saill Ricbard W. H. take said legacy of lIfty shares, and does. also take a proportionate interest in the residuum. The amount of the residuum of stock is five thousand three hundred and forty-six (5.346) shares, of which Mrs. S. Colt takes, in ttie manner specified in said will. 1.14921-31 shares; James B. Colt. for life, 574 26·31; Samuel C. Colt, in the manner specitied in said will. 574 26-31; Caldwell H. Oolt, 574 26-31; Henrietta Colt. deceased, 574 26-31; Elizabeth E. Colt, deceased, 574 26-31: Samuel J. Colt, deceased. 57426-31; children of Christopher Cblt, in the manner specified. in the will, 45927-31: R. D. Hubbard, executor, 57. 15-81; R;W. H. Jarvis, execlltor, 57 15·31: Mrs. S. Colt, executor, 57 15-31j,L. P. Sargeant. 57 15· 31; E. K. Hoot, 57 15·81. And this court doth further find that the right. title;and interest of the said James B. Colt in and .to the aforesaid 574 2(j,.31 shares of stock is a life-o:estate only,"
392
FEDERAL'.nEPORTER;
,The court further foundthat''the net amount of dividends on said 574 26-3hhareB, since the death of'the testator, to which $aid James B. Colt afldhisassigns were entitled",wlth interest thereon, and deducting inCI;>lllj:l tax paid by the executors, amounted to $84,575.01, which amount the, decree required the executors to pay to said James B. Colt and his assigns, with $330.09 as the costs of said petition. This decree was made May 21, 1 8 6 6 . , " Ihpursuance of the will and codicils and said decree of the Connecticut court, the executors in :May and June, 1866, to dispose of the 9,996 shares of stock, and the accumulated dividends thereon. The up to that time, from the death of the testator, had amounted to 150 per cent. oli the par of the stock, being, on the 9,996 shares, $1,499,400. They paid to the parties determined by said decree the back dividends on their primary legacies of stock and on their legacies ()f residulj.ry stock. They held;.in reserve for Mrs. S. Colt, for her life, 1,OPO .primary shares and .her 1,149 21-31 of the residuary shares. '.rheytrllusferred to Caldwell H. Colt his 500 primary shares and his 574 of the residuaryshllres, and to RichardW. H. Jarvis, adof Henrietta J. Colt, (in place of Elizabeth H. Colt,) the 500 pril,nary Elhares and tha574 the residuary shares belonging to Heorietta J ·. Colt. They passed over to the distributors of the estate the 500 primary shares and the 574 26-31 of the residuary shares given to J. Colt, and the 500. primary shal'es aud the 574 26-31 of the resiqg.ary shares given to Elizabeth E. Colt, and adjudged to be treated as iqtestate estate, and wh,ich shares the probate court directed to be distribllted,one-third to Mrs. Elir.abeth H. Colt, one-third to Caldwell H. one-third to HenriettaJ. Colt, to be held by her administrator, R. W. H. Jarvis. Those 2,149 21-31 shares were transferred by the exIWcordingly·. ,They in reserve for Jlj.mes B. Colt and his assignees, for the life of said James B., his 574 26-31 of the residuary shares. .They held in reserve;for the four children of Christopher Colt (Isabella, Edward D., Le Bar()11B., and Samuel P.) the 500 primary shares given to them by the second codicil, iJ.nd the accumulated dividenQllthereon,as required, until the youngest of them should become of age, less what was l;lllowed for their education; and, when that event happened, they, in January, 1873, transferred to each of the four 125 shares, and paid to each of them one-fourth of said accumulated dividends, the said Theodora D. Colt taking the share of Ed,ward D. Colt, then deceased, as his assignee. They transferred to Samuel C. Colt his SOO primary shares and his 574: 26-31 of the residuary shares. They transferred to the said Isabella her 100 primary shares and her 11430-31 of the residuary shares, and to the said Edward D. his 100 primary shares and his 114 30-31 ofthe residuary shares. They held in reserve for the Le Baron B. and said the Samuel P., each of them, his 100 primar,yshares and his of theresiditary shares, ,and tranaferred to each of them his sharewheI\ he became of age. They transferred tuthe estate of L. P. SargE:!ant its 50 primary shares and its 57 15-31 of the residuary shares, andto' the estate of E. K. Root its 50 primary >
COLTV.COLT.
393
sbares and its 57 15-31 of the residuary sbares, and to each of the three executors his or her 50 primary shares and his or her 57 15-31 of the residuary shares. The back dividends received by the executors on the stock were all disposed of by either being paid at tbe proper time to tbe parties receiving the transfers of stock, or by being paid into the general estate of the testator, and so distributed, because decided not to belong to the parties receiving the stock as legacies. Powers of attorney were given by the executors to Mrs. S. Colt and to James B. Colt, respectively,to draw,during their respective lives, the dividends on their respective lifecshares of stock. Thus all the stock, and all the back dividendson it, and all control over future dividends on it, was parted with by the executors, as such, before this present suit was brought, under what they relied upon as competent judicial authority, purporting to dispose of the title to said stock and dividends, in a suit to which all persons interested therein were supposed by the executors and the parties to the suit, and by the courts which adjudicated the questions raised and decided, to have ,been parties, except that the 2,149 21-31 shares set apart for Mrs. S. Colt for life remliin, to go, after her deatb, as prescribed by the will; and the 574 26-31 shftres which James B. Colt' enjoyed for his life remain now in the names of the executqrs, to go, with the dividends thereon since his death, to whoever may be entitled to them; JamesB. Colt having died on the 28th of October, 1878. It does not appear from ftnyrecord 'put in evidenee in the present suit what questions were raised or deCided on the· demurrer to the sufficiency of the petition, nor that 'anything was decided thereon except to over· rule the demurrer, nor is any order on the demurrer set forth, except what is recited as to its being overruled, in the order and the decree of the superior court which are set forth, nor does-the record show that the questions raised on the demurrer were adjudged by the' supreme court of errors, except as oral testimony alludes to that fact. But all parties have referred to the reports in the supreme court of errors of the case of Colt v. Colt, 32 Conn. 422, and 33 Conn. 270, as if they were made part of the record. The case in 32 Conn. is a report of the suit brought in the superior court on the demurrer to the petition, and states that the case on the demurrer was reserved for the advice of the supreme court of errors. It gives the arguments of counsel in support of and against the demurrer, and shows that the questions raised and adjudged were as to the right of James B. Col1'to It life-estate in residuary shares of said stock, in virtue of the primary legacy of 500 shares to him in the original will, although such primary legacy was revoked by the fi rst codicil, and as to the jurisdiction of the superior court over the SUbject-matter of the suit, and as to whether the ('Me was one of equitable cognizance. The decision of the supreme court of errors discussed and covered all those points, and it advised that the demurrer be overruled. The Case in 33 Conn. isa report of the action of the supreme court of errors on the six questions reserved by the superior court for the advice of the former· court on the facts found by the latter court, and the decision of the courl assigns its reaSOnS for its answers to the questions.
',!,The,bill in the present case isfiled,:against Elizabeth H. Colt, widow anq. for the children of Christopher Colt and of Caldwell H., Colt, (a legatee"anti claiming !;leir of Samuel -l., Elizabeth E.qolt, legatees,}and as claiming an interest under the, will; Richard ,p.Hubbard,executor, and nssuch trustee, and as elaiUjing an the will; Richard W. U., Jarvis, executor, and as .trustee, l1.qd ll:S. cla:iming, an interest un,der: will, and as admiijistmtor of Caldwell C. Colt; of E.l{.,JtoQtj, of LuthlN'P. Sargeant; Alice B. volt, N()rman Colt,a,nd Cqlt, children, and :heirs at law of JamesB. Colt; and Hugh Harbinson, administrator .of James B. Colt. The. bill sets fQrth the will and the codicils, and the proceedings thereon, and the qualifying of the ,executors. Italleges that, bj" the clause in tbe second codiCil to the; will, the four of Colt were substituted for the of Colt, under, tbe clause in the origin!',l will relating to given in trustfqr the issue of Ja.tnes a.Colt;; tlle ThElod;Qra G. Colt became, on. tlle 6tb of June, 1lle owner,by: assigmuent:from tbe administratorof Edwar4. ofbisestate.in .the residuary es.tate fonnedy belonging to the that of said stQokpassed under the resi,d uary clause of will; :,the said children' of Christopher Colt hlt,ye qpder ,.tlJewill only Ilbareseacll: of the stock lega27-31) shJlrflS ::<>f the residuary. stock, in respec.tO,f $Bid 400 accuDlp.lations tbere0tl, the gross legaCifl.'l.tl? 6$chand tbe re,!iid!Uum thereon,and the 500 shares of stock and dividends.ther,eon, aow.ven in trustfoJ,' them, which 500 shares and the tber,eon' were paid them on the 11th of January, creqits foreducationdpring JIlinority, according to the in addition, tbey entitled, the will and cod"additional shal'e,!i,;ltnd more, together with the divthereon." for the following reasons; (1) In respect tp,tbe 100 shares eachof!;itock to said children of topber,, thflY .each to m,Qre shares of the residuary stock than what.they so accumulatiollsthereon. (2) The gift to trustees :of500sbares, qfj stoGk in tr.uat· for the children of Christopher, in place ofth,echHdrenofJamesE" carried to the trustees, and entitled the Edw/u<t D., Le Baron B., and Samuel P., under the residuary.clause of tlw, will,: to receive .such proporjion ofthe stock bequeathed by the residuary clause as said 500 shq,resbear to the whole amount of the other legacies of atockgiven in the .will and codicils, and thedividellds declare4J1Ild accnled, thel'eon since the death ofthe testa. tor. Sl,lid chilq,J,'Ej1j1:of Christopher.are also entitled, under the residuary ,clause ,of thf'l will, to such proportion of i'l14 26-31 shares of residuarystQGknoW in ,the; hands of the executors, in which said James :8, .liff-estale" as, said gift oHOO Bhares in trust and said legacies,Qf.l0P shares eaQhtol3aid childrep (making 90.0 shares in all) bears to the ofstoek given in.thQ will. (4) AB the
cqLT t1. COLT.
395
plaintiffs have hitherto received less than their lawful proportions of the residuary stock and of the accumulations thereon, they ,are now entitled to receive the whole of the 574 26-31 shares now in the hands of the executors, the income of which was paid to James B. during his life, in order to aid in making .them equal with the other residuary and that, so far as any of said residuary stock and the accumulations thereon, rightfully appertaining to them, or to their said trustees in trust for them, have been transferred to said executors and trustees personally, and distributed and transferred to other parties, who, or whose legal repreflentativee, are defendants herein, the equities between said defendants and the plaintiffs in the premises should now be adjusted by the court, so as to make good and restore to the plaintiffs the stock rightfully belonging to them under the will and codicils, and the accumulations thereon. The bill also alleges that, wbenthe testator died, the said Edward D., Le Baron B., and Samuel P. were minors; that the last two continued. minors until after the termination of proceedings had in the superior court and the supreme court of errors ,vith reference to the will and codicils; that the rights of said children. under the will and' codicils could be lawfully asserted only by a guardian ad litem, in· the matter of their claims to residuary stock in respect of said legacy of 100 shares each, and by said executors in their capacity as trustees in the matter of their claim to residuary stock in .respectofthe 500 shares given to said executors in trust; that said childrenwere not, in said proceedings, or in any proceedings with reference to their claims to residuary stock, in respect of said legacies of 100 shares each, represented by any guardian ad litem, or by anyone in any capacity, and, in respect to their rights to residuary stock under said gift to said trustees for them of said 500 shares of stock, in place of the rights of said children being asserted by said trustees, the' plaintiffs are informed,:on the 27th of December, 1878. that said executors not only didIiQt appear and urge the claims of said children in respect ofilaid residuary stock, under said gift of 500 shares of stock, but waived thesame, and by counsel and by written brief opposed the claims of said children in respect thereof, so that, in .fact, the claims oCaaid chilrlren under said will were. at no time made; set up, heard, or passed upon in any of. the proceedings with reference to said will and codicils; that, had been represented in said' proceedings,' and their claims presented and urgedin respect to said legacies to them directly of said 100 shares each, and in respect of said legacy of 500 shares in trust, said additional shares ofstock and accumulations thereon, as claimed insl;lidbill, would have been delivered and paid over to: them; that said e.xecutors and trustees pretend that said children of Christopher are not entitled. by reason of said legacy of 500 shares in trust, to any share in the. original residuary stock. or to any share in the 574 26-31 shares of residuary stock in which said James B. has en.. joyed a life-estate, or to any. additionaloriginal residuary stock and dividE'nds, in respect of.said legacies of 100 shares each to said children, and, in support of such pretenaes) allege said .proceedings as affecting the'
896
FEDERAL REPORTER I
rights of the plaintiffs; that the plaintiffs are entitled to'such additional shares and accumulations thereon, and are not barred from claiming them because of said proceedings, and for the following reasons: (1) The said Edward D. arrived at age pending said proceedings, and the said La Baron B. and Samuel P. continued to be minors until after the termination of said proceedings, and neither of said minor children were represented in said proceedings by a guardian ad litem. The only guardian of them, pending said proceedings, was a general guardian of their persons .and estates, to-wit, their mother, said Theodora G. Colt, appointed by said probate court, and she had no power to represent them in ,said proceedings on the questions of their rights and claims under said willand codicils, and did not in fact at any time appearin said proceedings. The questions affecting the rights of said children in respect of said legacy of 500 shares in trust could not be passed upon in any proceedings until the youngest, said Samuel P ·· arrived at the age of 21 (3) The said trustees of said children were not summoned to appeal'lip,said: proceedings in theircapacity as said· trustees,' and entered no appearance; therein in said capacity,on behalf of said children, and employed no Oounsel' to appear before said courts in their behalfas said trustees\ and in -defense oithe rights of said children, under said residuary of said will, in. respect of said gift of 500 shares of stock in trust, and nojssues·were made up by said trustees before said courts in said proceedings; involving the rights of said children, under said will and codicikto, Said residuary' stock, in respect of said gift to said trustees, as so claimed. (4) If said Colt, Hubbard,and Jarvis,summoned to appear in Said proceedings as ,executors, were deemed to be before said c()urts astru3tees for,said children, said proceedings cannot: be held to affect or impair the rights of said children under said will and codicils, because said trustees, by: their counsel, appeared before said courts, and actively opposed,the claim: of.said children' to said residuary stock, in respect of said gift of 500'shares in trust. (5) Said Theodora G. Colt, during the pendency of said proceedings, was unacquainted with legal business,!ana, owing thereto, did not apprehend it to be her duty, as guardiianof said. minor children, to appear; in response' to the citation annexed to the bill in the s.uperior oourt, in their behalf, or as such guardiao, and did not in fact employ counsel to appear, or herself appear, to defend against,or to answer, or to become a partyt6, said bill, in either of said courts; and the said Isabella was at thetin1e of said proceedings also unacquainted with legal business, and, owing thereto, employed counsel'to appear for her or to defend her interests, and supposed, as did also. her husband, until about the 1st of January, 1879, that saill executors'had advocated her claims in her behalf,and had endeavored to:preserit them properly to said courts in her behalf· . The bill further alleges tbll.t the executors, on the probate of the will, took upon themselves the execution of all' the trusts therein contained, and,from tiow 'to time thereafter assumed, to act :astrustees under said bequests'to:them in trust for the plaintiffs,and have continued so to ever sincejand are accountable as such "to theplaintiffs l and now hold
l
COLT tI. COLT.
397
in trust for the plaintiffs said 574 26..31 shares in wnich said James B. formerly claimed a life-estate; and that said Colt, Hubbard, and Jarvis sometimes further pretend that, on the 11th of January, 1873, on the strength of having transferred !lnd paid over to the plaintiffs 500 shares bequeathed to them as trustees for the plaintiffs, and the accumulations thereon, they obtained from each of the plaintiffs a certain written instrument, purporting in each case to be a receipt to said respondents as trustees, and and discharging said respondents, trustees as aforesaid, from all further accountings, actions, or ca.-uses of action for or on account of said trust thereof, and further pretend that, on the strength of having paid over and transferred to the plaintiffs the property coming to the plaintiffs from them as executors, under the terms of said will, they, at that time, as executors, obtained from the plaintiffs a certain other written instrument, acknowledging the receipt from them, as executors, of $2,975.24, as the propo,rtional share of the plaintiffs in the balance .then in the hands of said executors, and also acknowledging the receipt of the various other property coming to the plaintiffs from said respondents as executors, and,in consideration thereof, releasing the said respondents as executors frol)1 all further accountings, actions, and causes ofaation therefor, except as to the question of their interest in the remainder of the said 574 26-31 shares claimed· to·· have been bequeathed to said James B. for life. The receipts to the trustees were four in number, uuder seal, and in this form: .. Received of Elizabeth H. Colt, R. D. Hubbard, and R. W. H. Jarvis, trustf'es the will of the late Samuel Colt. my proportional share of 500 shares of the capital stock of the Colt's Patent Co., bequeathed in 1luid will trustees, in trust for thE' children (except the oldest) of topher Colt, and of the accumulations thereof, viz., shares, 125, cash, $31,759.01; in consideration whereof I hereby release, discharge, and acquit the suid Colt. HuIJbard, and Jarvis, trustees, as aforesaid, of and from any and all further accountings, actions, or causes of action for and on account of January 11, 1878." said There was one receipt to the executors, signed by the four, under seal, in this form: "Received Hartford, January 11, 1878. of Mrs. Elizabeth H. Colt, R. D. Hubbard, and R. W. H. Jarvis, executors of the late Samuel Colt, deceased, the sum .of two thousand nine hundred and seventy-five dollars and twentyfour one"huntlredths, ($2,975.24.) being our full proportional interest and share in the balance of said estate in hands of said executors, as per their final administration account this day rendered and accepted in the court of probate; and, having preViously received in full the variolls other sums, legacies, annuities, devises, and distributions coming to us under said will and preVious settlements and administrations, toollrenUre satisfaction. we hereby, in consideration thereof. release, discharge, and acquit said Colt, Hubbard, and Jarvis, executors, as aforesaid, of from any and all furtllllraccountIngs, actions, and causes of action, excepting, however, the question of our interest in the remainder of the 574 26-31 shares of the capital stock of the Colt's Patent Fire-Arms Manufacturing Co., bequeathed in said wUBo James B. Colt lor life, the title to said remaindflr being undetermined."
898
FEDERAL REPORT$R,
The bill :alleges that" the payments and transfers O( stock .aforesaid were not a full settlement and .satisfaction with and toihe plaintiffs of and for the amounts of stock, and the accumulations thereon, to which the plaintiffs and their said trustees are and were entitll!d under said will; that on the .tOthaf January, 1873, the said Samuel P. having attained his majority On that day, the said li'rank E. De Wolf, Le Baron B., and Samuel P. arrived at Hartford from distant parts of the country; that on the next clay they went to Colt's armory in Hartford,and there met the said Hubbard ancI Jarvis; that thereupon certain instruments were drawn, either. by or at the dictation of said Hubbard and Jarvis, and the respondents, as trlJstees, paid over to the plaintiffs the said 500 shares. and ihe said balance of the accumulations thereon, and, as executors, paid over to the plalntiffs $2,975.24, represented by them to be the balance in their hands, as executors, belonging to the plaintiffs; that said Hubbard and Jarvis made no explanations to the plaintiffs of their rights under said will and podicils, nor that theplailltiffs had any further rights other than to receive said amounts; that the plaintiffs had nopfevious notice or knowledge that the respondents would ask at that timeJoranj'receipts or instrume!lts to be made by the plaintiffs; that said instruments were made without deliberation, and without time or opportuuitythe1'.efor, on the pa,rt of the plaintiffs, and with,. out full and competentkl;lQw1edge on their part of t1}eir rights under said will and codicils, and in ignorlmc;e of the course pursued by said courts. in filing a brief in oprespondents in the said procee,dings in position to their own rights as ttusteesof the plaintiffs, and to the rights 'of the plaintift'sas their ce,sf,wi$ quetTu8tent, and in ignorance of the manner in which the said decree had been obtained; that the plaintiffs bad great confidence· in said Hllbbardand Jarvis in the matter of their rights in the premises, especially in view of their fiduciary, relations, and were inclined to readily comply with any request from them in relation to the making of any instruments of receipt'which said Hubbard and .Jarvis might indicate as being necessary and proper, and no allusion was made to said residullrystock, nor it suggested that said instruments would ever be C'laimed to be n release of any of the rights of the plaintiffs, or of their trustees, therein; that said residuary stock, or their proportion or their, or their trustees', interest therein, did not form a part. of the transac,tion, and weN not covered by either of ·said instruments, but the receipt to the related only to the 500 shares, and the accumulations thereon, refel'retl to therein, and the tniSfa8 to said amount pf s,aid stock,:apd callnotbe to extend that in its effect; the receipt to the exeeu,tors related. only to tqe'.Pfl?perty coming..to the plaintiffs from the respondents strictly as executors,on account of the property given by the will directly to the plaintiffs, and not to any etock'or property bequeathed to trpstees of the pliliniiff8,and was not l.lh.'uets ..t,oo. . '"a ny o. f .. part.ies llS rc.fer.ring toan.yPt.ope.rty.glven.... .b . . ..Y willil}tti'st; and thfitsaJd instruments cover 0llly t,he of ,st(?qk, ..property. and mOl}ey. actually transferred. and paid over by the respondents, and wera without any. other or further consideration there-
COL'!'
r.
COLT.
899
for, .and do not operate as a release for anythingfurilier thtin said amounts. The bill further alleges that the said Colt, Hubbard, and Jarvis sometimes also pretend that, as executors, they have, from time to time, filed in the court of probate for the district of Hartford their accountsrelative to said estate and its settlement, and thatthe same were passed upon by said court, and duly approved, and are a bar to the prosecution of said'claims of the plaintiffs; that the plaintiffs removed from the state of Connecticut in April, 1866, and have never since resided in that state, and did not reside there when said accounts were filed; that they received no actual or sufficient notice of the filing of said accounts, or of any proposed action thereon; that the plaintiffs, or some of them, were minors at the time of the filing, except when the last one was filed,aild on the day that one was filed the youngest attained his majorityj that ;the said trustees of the plainti,ffswere not legally cited to appeat.luld did not and said niinor's not legally represented probefore said court of probate, and were pot present, and W.ere notboqnd thereby; and that, in.any event, whatever may have been.th9 proceedings in said court 'of probate, they are· not· a bar to .the prosecution Me,aid rights of the plaintiffs; The bill prays that said stock claimed .by the:plaintiffs under said ·will and codicils, and the accuniulatio),lS be paid over t9 tne p,laintiffs by :u.tors aild trustees. and that they may be decreed to account respecting the residQary stock and accumulations thereon coming into their hands as executors and trustees as, aJoresaid, and especially with reference to the 'reSidtia:rystock and acCumulations thereon'in respect of and appert8:inirlg to said gift of 500. shares of stock to t\1em in trust 'for.said children. . be conceded by all' parties that the stock distributable as residuary stock was 5,346 shar!JS. The plaintiffs contend that. if it be beld'that James B. Colt was not'entitled to any interest in the'5;346 'Shares. and that the exedutors,.in trust for children of Christopher, (excepfthe oldest,) were entitled to some oithe 5,346 shares,qased on thepritIlary legacy t.O the executors, in trust for said children,:.of 500 thentbe distributic "of the 5,346 shaJres would be as f6llows: 811ARE8.
Mrs. S. Colt. for life. · 1.14921-81 "-rhe two. surviVing children, 1;149 The two deceased children, (intestate estate.) · 1,14921-31 "-fhe executors, in tl"ust for the children. (except the oldest,) on the 500 llbares, 57426-31 ;Samuel C. ,COlt, 51426-31 The 'Children of Christopher, (except the oldest;) on the 400 share,s. 459'27-81 ., L. P. 5715-:n E. K, R09t, · : 0715-31 .'TheexecAtors. 17214·31
.'
400
I'EDERAL REPORTER,' voL
In the ab\>veevent, the plaintiffs claim to be entitled to receive, as their 57426-31 shares of the 5,346, the 574 26-31 shares noW in the hands of the executors, and to be entitled to the dividends from the death of the testator on, the 574 26-31 shares. The amount of those dividends they represent to be 226 per cent., being a total orover $140,000. The plaintiffs further conterid that, if it be held that James B. Colt was entitled toalife-estate in some of the 5,346 shares, and also that the executors, in trust for the children of Christopher, (except the oldest,) were entitled. to some of the 5,346 shares, based on the primary legacy to the executors, in trust for said children, of 500 shares, then the distributionofthe5,346 shares would be as follows: SHARES.
In the last above named event, the pJainiifl's claim that the incroo,se of shares giveyto each legatee. by the exclusion of the executors, as trustees for the children of Christopher, (except the oldest,) from sharing in the residuary stock, in respect of the 500 shares, was as follows: SHARES.
They also claim that, while the trustees are responsible to them for so many of said 519.03 shares asbeJongto said trustees, said trustees have :. resort to each of the above recipients for the shares so received by suid recipients, and which rightfully belonged to the trustees for the· taking out fro Ol the 574 26-31 shares now in the handsof the executors as the James B. Colt life-stock the 55.81 excessive shares he enjoyed the use of, and giving them to the plaintiffs, there remain
COLT V. COLT.
401
to be distributed among the legatees, including the plaintiffs, 519 3-103 shares, as follows: SHARES.
519.0.3
They also claim that, under the right oithe trusteeBso to resort or recoup, as the amounts of stock so to be recouped happen to correspond to the amQunt each legatee is entitled to in such distribution, the entire stoek may betaken in recoupment; that the plaintiffs would thus have received, through their trustees, under a proper distribution, in the first place, 5193-103 shares more than they received, with the accumulation thereon from the death' of the testator; and that they are also thus entitled, bythe death of James B. Colt, to 55.81 shares of the 57426-31 ' shares which James B. had for his life, and which are now to be disthereon since the death of James B., tributed, with the thus entitling them to all the 57426-31 shares. In respect, however, to those accumulations, the plaintiffs, in either of the above two views of distribution, waive all claim against the trustees personally for any dividends which went to L. P. Sargeant, E. K. Root, or James B. Colt, and insist only on the dividends which went to Mrs. S. Colt and her children, and to Hubbard and Jar\,is and to Samuel C. Colt, being the dividends on 407,41 shares, and which they represent to amount to over $100,000. It is thus seen that the pecuniarv amount involved in this suit is considerable. The stock claimed is within the control of the executors, but the dividends claimed have been received by the parties who are now called upon to refund them. It is contended by the plaintiffs that their trustees can resort for these dividends to the parties defendant to whom the stock was erroneously distributed . . Elizabeth H. Colt, Mr. Hubbard, and Mr. Jarvis have put in a full answer to the bill. Samuel C. Colt by answer adopts it, and so does Elizabeth H. Colt, as guardian of Caldwell H. Colt. Alice Colt, Norman Colt, and James Colt, the children of James B. Colt, answer, denying that .the plaintiffs are entitled to any part of the 574 26-31 sbares in which tbat James B. was entitled James B. enjoyed a life-estate, and to a fee in said shares, and that they, as bis only beirs at law, are entitled to a fee in said sbares; also denying that their interest in the residuum of tbe stock, in respect to the legacy of 500 shares given to the executors in trust for the law.ful issue of James B., was taken away by any codicil,-and claiming thatihey are entitled to a sharein said residuum
4Q2
FEDEUA,LREPORTER,
.in. respect, to said of liOO ,a,nd claiIpiJ;}g that was no revocation of their interest in said residuum; and adQlittingall the other allegations in the bill not inconsistent with Raid denials. No other an,swe:rs appear to have,been put in to the bill, nor does it appear whether the;other defendants have been served with process, The answer of Elizabeth H. Colt,Hubbard, and Jarvis is joint. It 'tllatthey have the 574 26-31 shares, the income of which they paid to James B. during his life, and that he is dead. ' It avers that the Le Baron B., and, P., and als,o Edward. D., were ,said' made parties to the petition of James B., and were duly served with process,therein; that at that time the said Theodora D. was the mother of the said Edward, Le Baron, and Samuel, who were then minors, and their legal guardian, and, in her capacity as such guardian, 'wRs"inade a party to said proceedings, and served with process therein; that, al14beplaintift'sand defendants in the present bill, or those who then legally. represented thein, were also made paMsto those.proceedings; tbat,said minors and theireaid guardian did ilJ.faot,appear in said suit,byeouDselemployed for them, to-wit, Henry, C.' Robinson, of Hartford,attbe term of the court t()Which said proceedings were made retumable, ,and did, appeal' and parties toll8id ,proceedings, and heard therein by said counsel, who was, SQ employed by them; was that in 'the decree of said court it was found asa fact !that the. parties to saidpll(,)ceedings appeared by their respective. counsel, and the said represented by. their guardians; that the said decree insaid:cll-'Use imports absolute verity, and is conclusive as to the matters so. Jfound, and is binding and conclusive on the plaintiffs; and that.accoilding to the law and prl;lCtictl in the state of Connecticut, when roino.rs ti.re made defendants in an Mtion at law Qr, in equity,and they have .",dUly-appointed gllardian,.wbich guardian:lS cited, to appear,and does. in, the suit. it is not usual: or necessary' to have any special guardiqQ. ad Utem appointed. The .answer recites the· said contents of .the said decree or judgment of March term, 1866, and alleges it is and in .accordance with it, they in full force; that,in did thereupon ,divide up and tran!ifer, to and among the respective persons so; held thereby .to be entitled to. the same; the whole of saidr6siduum·'Qfetock, and th.ereupon filed: in the court of probate for ,the district of Hartford their ·account, as executors, of the. settlement. of said estate, shQwmg the' disposition so,made by the.rn.ofthe residuum Of said stock, and 31soof that specifically devised, whichaaid account was,on the 2d of July , 1866, legally allowed by .said court; and said allowance the said court of probate duly a,ppointed is infull distributorstp distribute all thetel>tate.estate not specifically devised, 'di/ltributioll:, the. same was, Oil the 14th of and July, 1866, r.et\lrnedtosaid court,llnd. was by it approved, .and is still in full force,; ,that on. the 6th of August, 1870, and the 10th of January, 1873, they tiled further aCCQunts ofthe settlement of· said. estate as such executors. ,by which said eatate was flnally settled, which accounts were, Qnsaid :respective days. allowed by. ;sa,id .court, and said allowance is in
COLT'll. COJ.T.
full force; and that said decree of said superior court, and the orders of. said court of probate, in the settlement of said estate, and the conveyances of said stock in accordance therewith, are final and conclusive as to all matters therein; contained, as against the plaintiffs, and a bar to the further prosecution of this bill, so far as the rights of the plaintiffs to any part of the residuary stock are concerned. It denies that the plainiiffs are or were entitled to any more shares of said residuum than they have received, or any accumulations thereon. It sets up the said proceedings which took place on the 11th of January, 1873, the said receipts and discharges given to the trustees, and the said receipt and discharge given to the executors, the former as a settlement of all matters connected with the said trust stock, and the latter as a settlement of all claims of the plaintiffs against the estate, uo,der the will or otherwise, and against the defendants as executors. As to so much of the bill as refers to their action in the suit of James B., the answer avers that they were cited to appear therein as executors of said will, and did appear therein; that they employed counsel in whom they had confidence, to-wit, Benjamin R. Curtis, Origen S. Seymour, and William W. McFarland, to appear in said cause, and present such questions for the consideration of said court, regarding the construction of said will, as to them should appear well founded in the law, which was so done by said counsel; and that the defendants, as such executors, "did not appear or act particularly as trustees for or on behalf" of the plaintiffs, hecause the plaintiffs were duly made parties to the proceedings, by themselveS and by guardian, and appeared therein by able counsel, and were fully heard. As to so much of the bill as asks for the whole or any part of said 574 26-31 shares of stock in which a life-estate was given to said oJames B., the answer says that the defendants hold the same as executors for the persons duly entitled thereto under the will, and are ready to dispose. of the same in accordance with the orders of any proper court having jurisdiction thereof; and it submits to the court the question whether or not the distribution of said shares does not by law appertain to the probate court for the district of Hartford, in which such estate.was stlttled. It is important, in the first place, to "ee what was decided py the supreme court of errors, and the scope of the decisions, as to p\lrties and subject-matter. It is evident that James B. Colt, the plaintiff'in the suit, Bupposed that he was bringing before the court, and in the proper way to make the decree in the suit not only binding, but tinal, all the parties whose interests could be affected by the decree for which he asked. The petition avers .that the respondents to it have or claim some interest in the residuary. stock, (that alone the subjectmatter.) and that it is necessary that each of them should be mude parties to the proceedings, "that their respective rights in said residuum may be so ascertained an,d fixed, as to be binding on all said parties." This was.the scope of the suit,and the petition accordingly prayed that the .court would "ascertain and fix the amount of .said residuum, and the en\itIed t,hereto, l:ind their proportions uuder said will." It
FEDERAL REPOnTER,
was necessary that the court should do so, in order to enable it to comply with the further prayer of the petition, to ascertain and fix the number of shares in which the petitioner has an interest under said will. As the petition and the will and the codicils disclosed who were parties interested, and showed that the executors were trustees for the children of Christopher in respect of the 500 shares. and that some, and who, of such children were minors, and that the executors. as such, and said minors, and the guardian of said minors, were parties, and as it appeared that all of them, and all other parties to the suit, had been served with process it'! it f it is manifest that the two Connecticut courts and the parties defendant and their counsel must have believed that there was hO defect of parties. No suggestion to such purport appears to have been made by any party or counsel ,or court; whereas, if there was any such defect of parties, such suggestion was as obvious, then, to the experienced counsel 'and the learned courts as it can now be to any one in this suit. It was the interest of all persons then before the superior court that all the proper parties should be before the court, as the residuary stock was to be adjudicated upon and disposed of, and it was distributed under the decree which was made. It would certainly be a most extraordinary result if Connecticut counsel and Connecticut courts could be held tahave been so wanting in discernment as to have permitted the rights of minors to be adjudged without a proper representalegal title to tion before the court of the minors. and of those having the property in which the minors were interested. Nor can it be supposed that' this point passed BUb Bilentio. The question' of proper parties was one so important to:be considered that it must have been considered; and the fact that no suggestion in regard to it was raised by parties or :court proves quite as much that a suggestion as to defect of parties occurred, and was rejected as without foundation, as it does that it did not occur; while if,when it occurred, it appeared to have the semblance of soundness in it," it would have beenformaIly raised. It appears in 32 Conn. that Mr. McFarland, in arguing in support 0: the demurrer, and urging that the proper forum for the suit was the court of probate, and making other objections to the bill, did not contend that the' petition was demurrable for want of parties, but urged that the bill involved a settlement of the estate and of the rights of all parties in it. The main question considered by the supreme court of errors in 32 Conn. was whether the revocation, in the first codicil, of the legacy of 500 shares, which the will had given to James B. for life, with remainder to his "issue absolutely, applied to and canceled the bequest to James B. Colt 'in the will of his ratable proportion orthe residuary stock. The court said that, but fOf the provision in said codicil; James B. would have had at least a life-estate in 500 shares, and at least a life-estate in his ratableproportian of the residue of stock not specifically bequeathed. Guided by the principle that it must. be governed by the intention of the testator. to be determined by settled rules, which rules it distinctly lays down, it arrived at the conclusion that the bequest of ashare of the
405
residuary stock to James B. had not been revoked. The rules, as it stated them, these: "(1) The construction is to be put upon the instrument as a whole, and not upon detached portions of it. (2) If there is a codicil, that is to be read in connection with the will, and the construction is to be put upon the whole, liS one instrument. (3) The intention is to be inferred from the language used by the testator, explained, if necessary, by parol proof of such extrinsic circumstances as will throw light upon the meaning of the words used. (4) The court is not at liberty to in conjecture as to what the testator would have done if a particular subject had been brought to his IIttention, or liS to whaL he may have supposed he had done by the language used in his will. (5) The different parts of a will, or of a will and codicil, should be reconciled, if possible. (6) Whllre a bequest has been once made, it should not be considered as revoked, unless no other construction can be fairly put upon the language used by the testator." .Nowhere are the true rules for interpreting a will and a codicil,.with a view to ascertain the intention of the testator, more appositely Qr more tersely stated. The court remarked that the revocation was only of the legacy of 500 shares, which was, plainly, the first 500 shares; that the bequest of the residuary shares was in a different clause of the will from the bequest of the first 500 shares to James B., and had no reference to the first clause, except for the purpose of describing the legatees; that James B·. was as well specified to be a legatee of residuary stock by de.. <:ribing him as already a legatee as if the bequest had been of a given number ofshares of residuary stock to. him by name in the residuary dauae; and that the revo.cation in regard to James B. was specific, and not in general terms, as in the second codicil, in respect to the children of James B., revoking all legacies before made to them, or for their use. The respondents in that case urged that the will and the codicil ought to be read as of the date of the codicil, and that, therefore, after the codicil was executed, Jamel3 B. was no longer a legatee of the 500 shares, :and so the bequest of the residuary shares would not apply to him. To this the court replied that ;reading the will as of the date of the codicil would not strike out of the will the clause containing the legacy of 500 -shares, but would have the effect merely to insert the codicil as the last <:lause in the will, and the.bequest of the residue, to be divided among those "to whom I have hereinbefore given legl1cies of stock," would still have the construction which the court had given to it. Therespondents in that case also urged that the bequest of residuary stock was auxiliary 10 the prev:ious b.equest, and that with .the revocation of the earlier one the later one fell. To this .the court replied that the rule had no applieatioIl.to these bequests; that there was no connection between different -shares of stock, and no common use of them,. and they could be held with equal convenience separately or together; that no case could be foull<l where it had been held that a revocation of one devise operates as :8 revocation of another devise of merely the same kind of property; that there would be no propriety in such a rule, and no reason for its adop1:ion;alld that the implication of a revocation of one legacy from the ex;press specjfic revocation of another arises solely frozn the dependence. of
406
FEDERAL REPORTER,vol.
the former on the latter. The court further observed that the statement in the codicil of the dissatisfaction of the testator with tDeconduct of James B. would alone be no ground for implying a revocation, though in the case·()f a doubtfuL construction it might, perhaps, tum the scale. The court then alluded to the argument that there was virtually but one legacy to fames B. ,because the testator had determined to divide all of the stocka;i:uong certain persons in certain proportions, and, not being certain how much there would be at his death, gave certain specified amounts to the legatees, in the proportion in which he intended to divide the whole, and then gave, as a part of the same bequest, the indefinite residue in the same proportions, adopting tMs course in lieu of bequeathing the w:ho1e at once, in proportion to certain num bers. To this argument ihecourt replied that the most that could be said of it with any certainty was "that this may have been his intention;" that the claim was not corroborated by anything in the will or codicils, unless it might be the unfriendly feeling ,exhibited by the testator towards James B.; and that,on the other hand, the facts that the bequests are in form separate, that the bequest of stock to James B. is conditional, while the bequest of residuary stock is not, that the revocation names specifically the first bequest, and that it was improbable the testator would neglect tomake any bequest to a brother, were particulars, all of which were calculated to favora different construction. The court added that,it being settled that a second legaoywill never be· presumed to be a dependent but that, on the contrary, every legacy independent in its terms will be presumed to be independent, and to make it otherwise a clearintention ml\stappear ontha face of the will, or will and codicil, it followed that the second legacy to James B. must be regarded as an independent legacy, ;and, not affected by the revocation. On the point taken, that the· remedy was not· in the superior court, but was in the court of probate, the court said that, on the allegations of the petition, the time had arrived for the payment of the legacies; that they were payable'by 10rce of the; will itself, and it required no action of the court of probate to give the legatees a rightto recover them; that a suit would lie to recover the legacy; and that, the legacy being one of specific shares of stock, a suit in equity in the superior court would lie toenforce the transfer of thel!tock, and it would also lie tor an accounting in regard to ,the dividends which bad been received on the stock by the in a fiduciary capacity. It is true that this decision on thedeml1trer, establishing the right of James B., did not directly decide against the right ofth'e children of Christopher. 'The clause in the original will, giving 500 shares in trust for the issue of J.ames B·· and the clauses in the codicil, revoking alllej1;aeies to or for the use of said issue; and giving to the children of Ohristophera bequest, -were not under direct consideration, or involved, in thEndecision on the demurrer." ·But the supreme court ofer-, rors, having decided, on the denlurrer,in;;32 Conn., that the residuum of stock was given independently by the will to the persons and parties. to whom stock had before.hdhe wiUbeen given, and, so, that a share in
COLT t. COLT.
407
the residuum was given to James B., held, in 33 Conn., when called on of the children of Christopher in the residuum, in to pass on the respect of their 500 shares, the converse of the same proposition,and decided that it logically followed from their prior decision that persons and parties to whom stock had not before in the will been given could not take stock under the residuaryclause,and,so, that a share in theresiduum was not given to the children of Christopher in respect of their 500 shares.. Acting on the view that the one decision may logically follow from the other, while at the .same time contending that the one decision does not logically follow from the other, the plaintiffs' counsel have, in· argument,addressed themselves to undertaking to show that the decillion of the Connecticut court in favor of the right of James B·. was/erroneous, with a view of getting rid of the. effects of the construction which was' put on the will and the first codicil in the decision on the. demurrer. This they have done, that it is open to the plaintiffs to have the question considered anew·in this suit, as if it. had never been raised in the former suit,because of the before mentioned alleged defects as to parties in the former suit. . The view of the plaintiffs' counsel is, that the. proper construction of 1.hewill 'and codicils is such that, if James Rean have no right:to a share intbe residuary stock,tbe children of Cbristopber must, for the samel'$Son, have aright toa share in it, in respeot of the bequest given to them in tbe second codicil. It is proper, therefore, to consider such right ofJamesB. in the:.liJrhtof the:"iewsnow urged. Thearguments of 'Counsel against the' right of James B.. are set forth in the ·report in Conn. The leading counsel for the defendants was Mr.B. R. Curtis, of Boston. He urged that on the three papers,taken as one testamentary act, the testator did nQt intend tbat the residuary stock should go to any persons who were not prior .legatees of. stock.; .that he meant that a class of persons shquld have: the residuum divided them; that :the exclusion of a person from the class excludes him from sharing intheresidl1um; that the revocation of legacies of stock by the codicils had the effect to make the revocations increase the l'esiduumj that this in:crease was intended for the, benefit of the specific prior legatees, in theproportioDS of their legacies; that, in view of the confirming clause at the .end of,tbe second codicil, the will was to be construed as if the original had been rewritten as altered, omitting the revoked parts, and substituting new legacies in place of old ones revoked; tbat it was to berea.das the date of the last codicil, and with all the revoked legacies omittedahd the substituted legacies inserted; that, under that rule,thewill could no longer speak of James B. as the legatee of 500 shares, and, if, ,it. could not speak of him as such a legatee, it could Dot as II legateeullder the residuary legacy, which gives,the re-maiilingstockto the prior legatees of stock; and. that, under the oppositeconsti-uction, the 500 shares originally giv:en to James Eo fall into the -residuum, and James B., if taking a share of such residuum, takes a part oethe very 500 shares which the testator had declared be should n6tt,akEi. .-In13uch to·8U bstituted ·legacies,. the legacy of stock
408
FEDERAL ;REPORTER,
in the ,second,codicil to the children of Christopher. would come under observation as a legacy substituted in place of the legacy in the original will of stock in trust for the issue of James B. The views urged by Mr. Curtis received the attention of the court, as appears by the decision. The principal contention of the plaintiffs' counsel on this branch of the case is that the legacy. of the proportional part of the residuum of stock to each legatee of it is united with each primary legacy of stock, so that the revocation of the primary· legacy to James B. revoked also the legacy united with it, or. accompanying it, of the proportional part of the .residuum of . Stress is laid on these words in the will"meaning that my residuary estate in said stock shall be shared by the same persons to whom I have given specified .legacies in stock, and in precisely the same ratable proportions"-as having the effect, notwithstanding the prior words, "hereinbefore given," to cause every primary legacy of stock, whenever made, by the will or codicil, especially in view of the confirming clause in the second codicil, to carry with it its ratable proportion of residuary stook. This is referred to as establishing a union, binding up the two portions of the stock in one common dis_ position,and as enabling' the testator to revoke or increase or diminiah It primary legacy of stoek, and so effect a similar change in the residuary stock,cwithout ever mentioning the residuary stock.. This view of the proper construction of the: will does not appear to be the proper one. The reasons assigned by the Connecticut court for regarding the primary bequests and the residuary bequests as independent, of each olher, and If independent, the conclusion not united, seem to be arrived at as to James B. was inevitable. .The rules laid down by the Connecticut court, as those which it followed, were based on authorities cited by the counsel for James B., and which are found in the report in 32 Conn. One of the m'ost pertinent cases is that of Roach v. Haynes, 6 Ves. 153. One Haynes; having a power of appointment under the will of one Franco, in respect to certain annuities, gave them and certain specific articles by will to trustees, in trust for het residuary legatee, "hereinafter named." All' her estate not· thereinbefore disposed of she gave to her son David. Afterwards l'Ihe made a codicil, reciting that she had, by her will, given to her son William £l,OOO,and the residue of her estate to ber son David, and certain other legacies, and revoking "all the above bequests," and giving the residue of her estate and effects to her sons William and David, equally between thl'/m, and givingcertain pecuniar;yand specific legacies; and adding that, with these aIterations, she confirmed her will, revoking all other codicils, and declaring that to be' the only codicil to her said will. David claimed to be solely entitled, William claimed to be entitled jointly with David, and residuary legatees of Franco claimed the fund as undisposed of. The case .came before Sir WILlIAM GRANT, master of the rolls. For David it was 'Contended that,: although he was; by the codicil, deprived of the description of sole residuary legatee, the codicil had no reference to the execution of the power of appointment, the fund not being given as a part of the residpeiand that, as the codicil was dire.cted to operate as a revoca-
409
tion of distinct parts of the will, it could not operate beyond that. For William it was urged that by the will the fund was united to the general personal estate, and the gift of the whole, fund and residue, to David by the will showed an intention not to distinguish between the fund and the general personal estate, and that thus the revocation of the residuary bequest to David, and the gift of the residue to the two,carried the fund to the two. For the residuary legatees under the will of Pranco it was contended that the codicil entirely revoked the residuary bequest in the will, and in giving "the residue" only the residuary personalestate, and had no reference to the fund. The court held that the will separated from the residue the annuities and the specific articles, and vested them in trustees,and then gave the residue directly, and without the interposition of trustee, to David; that this was an appointment for the benefit of the person to whom she should give the residue; who turned out to he David; that, as the annuities and the specified articles had been separated from the residue, the revocation of the residue did not extend to them,and did not affect the fund; that the claim of the residuary legatees of Franco must be rejecteri; and that David was solely entitled. The shares of stock in the present case, in the primary legacies and in the residuary legacies, were the same kind of property, as is said in Colt v. Colt, in 32 Conn., but so the general personal estate, given as the residue in Roach v.· Haynes, was the same kind of property.with the specific articles given to the trustees with the capital of the anmiities. As SirWILUAM: GRANT remarked, the revocation of the bequest of the residue did not extend to the specific articles, because the tion was manifest in· the ,,'ill not to include the specific articles in the residue, and, if David was to have the specific articles, notwithstanding the codicil, he must also have the capital of the annuities, which the will had separated, equally with the specific articles, from the In the present case the shares of stock given by the primary legacies were no part of the residuary stock, and the legacy of them was as distinct from the legacy of the residuary shares as if the residuary stock had been shares in a different corporation. In Hall v.Severne, 9 Siro. 515, a testator by will gave pecuniary individuallegacies, and, among them,£100 to one Bannister. Hthen directed his execntors and trustees to divide the residue of his stockEl and funds among "all and every the befere mentioned individual legatees," in the proportions that their several personal legacies "hereinbefore given and bequeathed to them" should bear to the produce of the residue. By a codicil, which he directed to be added to and taken as part of his will, he gave a legacy of £200 to the same Bannister, and pecuniary legacies to others, who were legatees under the will, and declared that the legacies in the codicil were given to the legatees therein mentioned, in addition to what hE' had given to them, or any of them, by his will. The question arose whether the legatees under the codicil were entitled to flhare in the residue with the legatees under the will. For Bannister it was contended that, as the testator had directed that the codicil should. be taken as a part oitha will, the will was to be read as if it contained
410
FEDERAT,
REPORTER,
a gift of £300 to Bannister; and that, .under the declaration in the codicil that the legacies given by it were to be in addition to those given by the will, the additional leKacy to Bannister nlust partake of all the iricidents of the pi'iorone, and carry with it a.share of the residue. The court (Sir LANCELOT SHADWELL, Vico-,Chancellor) held that, undertbe will, the persons who were to take the residue were the legatees named in the will; that the proportions in which they were to take ii were the proportions which the legacies thereinbefore given to them, respectively, bore to the amount of the residue; and that, under the codicil,thelegacy of £20000 Bannister was a substantive gift of £200, declared to be in addiUonOO the gift; of £100 in the will, but did not carry a further share of the reaidue in proportion to itself. The principle of this decision would lead to the conclusion. tbat, even if the codicil had revoked the legacy of £100 given to Bannister by the will, Bannister'would have. shared in the residue; and, it is a direct authority for holding that the substantive gift of stock to the children of Christopher, in the second codicil, does not carry a share of the residuary stock in proportion to itself. In Wetmore v. Parker, 52 N. Y. 450, the testatrix, by her will, gave $10,000toa church, to complete its edifice or pay any debt therefor, and,if not required for that purpose, then to be invested, and the income expended by the trustees of the church for its use and benefit. She also; by her will, gave to an academy $10,000, to erect its edifice, or pay any debt therefor, or, if the building should. be completed and paid for before the bequest should take effect, then to be expended by the trustees,of the academy for certain .specified objects. 'l'he will bequeathed. the residue of the estate" to the several pel'sons. corporations, and societies to whom I have hereinbefore made bequests, and who shall be livinK and existing, and able to take the same, in proportion to the amounts given and bequeathed to them, respectively." Afterwards she made a codicil, in which, after reciting. the bequest to the academy, and that she had given $3,000 to it, "intending the same to be part of, and to be paid in anticipation of. so much of said legacy, * * * therefore" she revoked" the, bequest: of 83,000, part of the said sum of $10,000/' and bequeathed to the academy" the sum of $7,000 instead of $10,000, ·to be expended by the trustees thereof for the purposes of. and in the manner prescribed in aud by," the will. Afterwards she made another codicil, in which. after reciting that she had by the will given $10,000 to the church, for the purpose, principally, of aiding in erecting its edifice, and in. paying any debt that might be thereby incurred, and that it now appeared probable that said purpose would soon he accomplished, and that she had concluded to give at that time $3,000 towards extinguishing said debt, she revoked said bequest 'of $10,000 to said church. The court of appeals, in deciding the case, remarked that the bequests were all of money, and that, by virtue of the directions in the will, the whole property was to he deemed converted into personalty at the death of the testatrix. The court considered the question whether it was the intention of the testatrix, by
COLT 11. COLT.
4:11
the revocations, to deprive the church of all share in the residuary estate, and to restrict the academy to the proportion of the residue represented by 37,000, instead of 310,000. It referred to the rUles that, iu ascertaining and carrying out the intention of the testator, as the primnry object in construing wills, a codicil will not be allowed to operate as a revocation, beyond the clear import of its language; that an expressed intention to make an alteration in a.will in one particular negatives by implication an intention to alter it in any other respect; and that the,language employed must be scrutinized with care, not only in the particular parts, but in every part, of the instrument, in order, as far as practicable, to ascertain the operation and intent of the mind using it. The conclusion of the court was that the two codicils did not operate to cut off or impair the right of the academy or of the church to share in the residue of the estate. It was held, as to the academy, that the two bequests were not dependent, although the reference to the first in the ,last designated the legatee and the amount; that the one legacy was for particular purposes, and the other for general purposes; that the legal effect of the will was .to designate the academy as a residuary legatee' for an amount made certain by mere arithmetical calculation, as effectually as if the name and amount were written out; that the testatrix paid $3,000 upon the specific legacy in her life-time, 'and revoked $3,000'of it, in language carefully confined to that alone; that, if she had intended to affect the other bE::quest, it must be presumed she would have said so; that the will and codicils bote evidence of particularity of expression as to every testamentary arrangement, and, within the rule referred to, the alteration of one bequest negatived au intention to alter the other; that, if she had paid the whole $10,000 while she lived, that would not tend to show an intent that the other should not take effect, but would evince a continued testamentary friendship; that the reasons for revocation applied only to the specific legacies, showing that the testatrix regarded the two as independent; and that the right of the church to the residuary legacy was substantially the same as that of the academy, and for the same reasons. The court considered the argument that the will and the codicils must be construed together, speaking only from the death of the testat·fix, and that, therefore, the whole will should be construed, for all purposes, as though the bequest to the church was not in the will at all, and that to the academy was 87,000 at the time the will was made. It said that that proposition, as a whole, could not be sustained, being in conflict with the rule that it must be ascertained, from all the testator has said, what he intended; that a will is to speak from its date, when a fair construction of its language indicates such intention; that a reference to an actually existing state of things itl a will refers to the date of the will; that that rule is applicable to both property bequeathed and to legatees entitled to take; that the general rule is that, if a bequest is made to one sustaining a particular relation,and there is such a person in being at the date of the will, it is descriptive of that person; that, whatever exceptions there are to the mle, the rule and exceptions are established, to reach the intent of the
412-
FEDERAL REPORTER,'
testator; ;that the revoked legacies, thouKh out of the will as legacies, may be referred to if they throw light upon other portions of the will; that when the testatrix said, in the· residuary clause, "I give to the persons to whom I have hereinbefore made bequests," she referred to an existing description, and the court must adopt the same description; that "hereinbefore" means "in this will as it now exists;" that the language of the will and codicils, the circumstances developed, and the rules of law concurred in not permitting the conclusion that the testatrix intended that her residuary estate should go to those only who had unpaid or unrevoked specific bequests at her death; and that no such intimation was contained either in the will or the codicils, nor had any reason ·been suggested for such an intention. The court then cited the case of Colt v. Colt, in 32 Conn., as deciding the precise question in accordance with the views it had so expressed, and in a case not as favorable to the legatee, having less elements of independence in the legacies, and having a change of friendly relations between the testa1{)r and the legatees stated in the revoking codicil. The court than referred to the case of HayB8 v. Haye,s, 21 N. J. Eq. 265, which is cited by the plaintiffs here, and distinguished it. The will made bequests to various persons. In the residuary clause it was stated that the specific bequests amounted to $70,000, and that, if the estate amounted to more or less than that flum, they were to be increased or diminished in proportion, so as to absorb the whole estate. In a codicil the testator revoked, partially and entirely, bequests to the amount 0[$7,000, 'find directed that this sum should be apportioned among certain remaining legatees. It was held that the residue must be divided among the legatees in proportion to the amount to each, after the addition or deduction of the $7,000, according to the terms of the codicil. This was upon the ground that the specific and residuary legacies constituted but one legacy to each legatee, and were dependent. : The feet ·that: the bequest of stock in this 'case to the executors was made to ."my executors hereinafter appointed,j, and that, when the first codicil revoked the appointment of Deming as executor,and appointed Jarvisin his place, still, although there was no provision directly giving to Jarvis the legacies of primary and. residuary stock, it was held that he was entitled tathem, and Deming was not,is referred to by the tiffs as showing that such legacies p&13sed to Jarvis, because the word "hereinafter" referred tathe will and codicils combined, llnd ':1at a similar construction should be given to the word "hereinbefore." But the court put its decision, not on that ground, but on the ground that the bequest to the executors was to them as parties, and as "hereinafter appointed," and not as and was compensatory, and intended for those who should perform the kust. The plaintiffs also refer to the fact that the original will gave 25 shares of the stock to Alden, on certain cQnoitions, and the first codicil gave him 50 shares of it, in lieu of the 25 shar",s, on the same conditions; and they contend that the testator intendpd he should share in the residuary stock in proportion to the 50 shares. But this is begging the and the views above laid down
COLT
v.
413
show that Alden could have shared in the residuary stock only in respect to the 25 shares. The plaintiffs also refer to the revocation, in the first codicil, of "the legacy" given by the original will to the oldest son of Christopher, and say that the original will contained two legacies in respect to him,-primary and residuary,-yet both legacies must be regarded as having been revoked; and that this could be only on the view that."the legacy" was mentioned as the primary legacy, and as the representative of the whole, so that revoking the primary legacy revoked the gift of its corresponding residuary stock. There is nothing in the reasoning in Colt v. Colt which would justify the conclusion that the revocation could operate only on the primary to the oldest son of Christopher. "The legacy" may well mean all that is given as a legacy, or by way of legacy, whether primary stock or residuary stock; but that is very different from revoking a legacy of 500 shares, or of any other specific number of shares. The same remarks apply to the revocation, in the second codicil, of "the legacy" given "by said original will and codicil" to trustees for founding the school. In that case there were legacies to such trustees, by the original will, of primary and residuary stock, and a legacy of primary stock to such trustees by the first codicil; yet, in the second codicil, all these legacies are grouped together in the revocation, as "the legacy" and as "said bequest." Much stress is laid by the plaintiffs on the facts that the revocation in respect to James B. is because of "his late unbrotherly conduct;" that the children of James B. are cut off by the second codicil, which it is alleged shows further alienation from James B.; and that the revocation of the primary bequests for the school threw 3,000 shares of stock into the residuum, and left that quantity and its proportion of residuary stock to be divided among theotber legatees, largely increasing the amount of each of the other residuary legacies. From this it is urged that it cannot be supposed the testator intended, while cutting off the primary legacyof stock to James B. and all the legacies to his children, to leave to JameS B..more than 574 shares of the residuum, while taking from him a primary legacy of only 500 shares, andtbus give him a part of the very stock he was taking away. The complete answer to these suggestions is that, after the testator had, by the will, given a specific legacy of stock to James B. for life, remainder to his issue, and a specific legacy of other stock to trustees for said issue, and had made a residuary clause, such that James B. and his issue on the one legacy, and the trustees for his issue on the other legacy, would share in the residuary stock in proportion to such legacy, he, with these things fully before his mind, revokes, in the first codicil, the legacy of 500 shares" given in the aforesaid will to James B. Colt for life, remainder to his children," and does not revoke any share of James B. in the residuary stock, and afterwards, in the ,second codicil, which refers to the first codicil and its contents, gives to each child of James B. $100, and revokes "any and all other .legacies .or devises by me heretofore at any time made to or for the use and benefit" of the children of James B., or any of them, and does not rev:oke allor any legacies theretofore at any time made to James B.
414
FEDERAL:' REPORTER j
,It is.funhel'urged by the plaintiff's that, as there waEi it division oC some of the,stOck, made by the will and the codicils, in specific legacies, to precede a second division of the residue of the stock, to be made by the executors in the future, the ,word" hereinbefore"should be divided into two words, "herein "before,"and "herein" should be held to mean in the will and the codicils, and "before" should be held to apply to all legacies whichpreeecIethe distribution to be made of the residuelwhether such legacies are fbund in the, will or in a codicil, so as to 'make the residuary clause read: that the remaining stock shall be divided'among the several "to whom I have herein" ,......that is, in the will and codicils--"before"-that is, in the first division effected by the primary the will and codicils-"given legacies of stoek, in the ratio and proportion in whioh said legacies of -stock are herein"-that is, in the Will and codicils-" before given," :-that is; in the primary division effected by the will and codicils, which division precedes the division to be made or the residue,"meaning, that my residuary estate in said stock shall be shared by the, same persons to whom I is, in the will lln] codicils-"given specified legacies in stock,and in precisely the samfl ratable proportions." This view is ingenious, but very unsound. It wrests the plain and straightforward meaning of the word "hereinbefore," and substitutes for it a fanciful division of the word into two words, to each of which is attributed a fanciful meaning, not in accordance with ordi. nary meaning, and having no basis except an inspiration from the result sought. We come now to consider the bequest in the original will to trustees for the issue of James B., and the provisions of the second codicil as to the children of James B. and as to the children of Ohristopher. In so far as the views before announced in regard to the right of James B. to share hi the residuary stock lead to the conclusion that he had such a right, they also lead to the conclusion that the children of Christopher have no such right in respect of their primary legacy of 500 shares. That conclusion follows logically from the conclusion in regard to James B., as was said by the court in 33 Conn. But the plaintiffs present another view, which they claim was not considered in Colt v. Oolt. They eontend that, without regard to what construction is put on the will and codicils, in respect to the questions actually considered in Oolt v. Colt, the second codicil does not work a r6vocation of the legacy of 500 shares given to the executors in trust by the will, with a trust for the issue of James B., but merely effects a substitution of the children of Christopher, as cestwis que ttu8tent, in place of the children of James B.; the gift of the stock to the executors in trust remaining undisturbed. It is contended that the Connecticut court left out of view the consideration that the gift by the will of the legal title in the 500 shares to the trustees waS not revoked; that the will gave the stock, the legal title, to the trustees; that all it gave to the children of JamesB. was the use and benefit of the stock; that such use and benefit was withdrawn by the second codicil; and that the language of the gift to the children of Christopher, in place
415
of the children of James B., is such as to make the case one of 0. substitution oHhe former for the latter, and so one where the interest given stock was transferred by subto the latter by the willin the stitutionpy the second codicil to the former. The beque"t in the original wiUwas not to the c4ildren of James B., but was to the "executors, andthei1!;l$uccessors in said office," in trust for the issue of James B., the issuento, have the stock when the youngest survivor should have reached the age of 21 years. By the second codicil, in the first place, a legaCy of 8100 is given to "each of the children" of James B., and then the codicil ClUlcels and wholly revokes" any and all other legacies or devises by I.De heretofore at any time made to or for the use and benefit of said children, or any of them." This disposes of the legacy. It is taken away' from the executors as trustees of it for any purpose, because the only purpose of it was for the use of the children of James B., and, as a legacy for their use, it is revoked. It is not merely the use or benefit th.at is revoked, leaving the legacy to stand, with a substituted use. The codicil next takes up the subject of the children of Christopherl and, after giving 0. legacy of $100 to the oldest son, and revokingalllegacies before made in his favor, it proceeds: .. And 1 hereby give, bequeath, and deviSe to the other cbildren of my said brother (ssid eldest son not being included herein) the property, to-wit, five hundred sbares of the Colt's Patent Fire-Arms ManUfacturing Company, which in and by said original will is bequeathed to my executors in trust for the nse of the cblldren of sald James B. Colt, to bave and to hold to said other children of the said ChristolJher in equal proportions. This last bequest ill in trust for said children. and the property herein bequeathed is to be held by my executors for said children in tbe same manner, and subject to the same limitations, as are provided in said original will in the bequest to the children of said James B. Colt." . Here the legacy in respect to the children of James B. is referred to, first, as a legacy to the executors in trust for the use of said children, and then is referred to as a bequest to .the children. It was clearly a bequest to the executors in trust for the children; but the form of words in the codicil shows that the testator drew no distinction between a legacy to a,person and a legacy to his use. So the bequest to the children of Chrlsoopher is, first, a bequest to them. to have and to hold to them t and then is declared to be in trust for them t in the executors, on the saIDe terms as provided in the original.will in respect to the children of James B. Here, again, is no distinction between a legacy to a perSOl;l and a legacy to his use. But the sum of all this is that the legacy is to the executors in trust. Still, it is as distinct a legacy from the legacy to the execntors in trnst for the cbilpren of James B. as that-legacy was distinct from the devise of land to the executors in trust for the children of the testator, and from the beqnest to the executors in tru!;!t for the school. The fact that the 500 shares covered by it are declared by the second codicil to be the 500 shares which had been given in tr.ust for the children of James B., and the legacy of which had been before revoked in the same codicil, cannot make it a substituted legacy of such a character as to give to· the children of Christopher
416
FEDERAL REPORTEn,
the same right to share in the residuary stock,in respect ofH, which the children of James B. would have had in respect to the 500 shares given in trust for them by the original will. The reason for this conclusion is that the Codicil revokes all the legacies to orfor the use of the children of JamesB.".;.;.;..the two legacies' of' stock, the primary and the residuar)',--and then it does not give both of them to the'children of Christopher, but only gives one of them, to-wit, 500 shares. l.'hat was the primary legacy in the original will. No other legacy of 500 shares was given to the children of James B. in the original will. The legacy to them in the residuary stock was not one of 500 shares. The case is no different from what it would have been if the original will had two specific legaci-es of stock to the children of James B., one of 500 shares and one of 400 shares, and both had been revoked; and then the one of 500 given to the children of Christopher, without mentioning the other. They would not have been entitled to the other. :A.sthe codicil had just revoked 'all the legacies to or for the use a f the children ofJames B., one of whioh was a legacy in the residuary stock, it was obvious and easy to have'given a legacy of all the sanie stock to the children of Christopher, and not to have limited the legacy to 500 shares; in terms, if it had beerdlitended to extend it beyond 500 shares. The subject must have beep in the mind of the testator, in having just revoked all legacies to the chqdi'en of James B., yet, when he saw that there was thus residuary stock rtW9ked to the extent of more. than the primary 500 shares, which would go into the residuum again, and, if not given to the chilwould' go to thE' other persons entitled to share in dren of it, he from mentioning it, and limits the bequest to the children singuof Christo'phef, 'industriously, to 500 shares. There was lar in the residuum of stock. The same codicil had just augmented it by the 3,000 shares previously devoted to the school trust, and by 25 shares before given to the oldest son of Christopher, the first codicil having also augmented it. It is further contended for plaintiffs that the bequest, in the second codioil, to the children of Christopher, is of all the property given by thfl original will to the executors in trust for the children of James B.; that the words" the property, to-wit, five hundred shares;" etc., "which in und' by said original will is bequeathed to my executors in trust for the use of the children of said James B. Colt," must be read as if they were "the property which in and by said original will is bequeathed to my executors in trust for the use of the children of said James B. Colt, to-wit, five hundred shares," etc.; that, in such case, the bequest would carry the property,-all of it, primary and resid uary stock,-because that, and nothing less, is the property which the original will bequeathed, arid the words following the words "to-wit" would be rejected as false description;' and that, if the codicil doee not give the residuary stock, it does not give "the property." It is by no means clear that in the present case, if the language were in the form so suggested, it would carry the residuary stock, because there was a specific legacy of 500 shares will to trustees for the children of James B., and given by
COLT II. COLT.
there was also a distinct legacy of residuary stock to, such trustees, and the reference in the codicil to the legacy of 500 shares was not a false defrom this, the two distinct legacies existing, and scription. 'But, onepfthem being of 500, shares, and properly so described, and in all respects otherwise properly recited, the gift of the subject of one of them as 500 shares must be beld to control the \Vords, "the property, to-wit." The case is not one where the testator had given, say, a legacy of 600, and then referred to it as 500. aere were two distinct legacies, and his reference to 500 shares was needless surplusage if he meant to, give all the shares, primary and residuary, he necessarily having both before his mind. The criticism that the language is " the property which is;" and not "the 500 shares which are," has been observed, but is not conr;>idered of any weigbt. 'The words "the property, to-wit," are equivalent to no more than th13 words, "the property, consisting of 500 shares," eto' 1 "which is," etc. This means no more than" the 500 shares," although the grammar of the sentence makes" is" proper. As has already been shown, it is a mistake to' say that the original' gift of the 500 shares to the executors in trust is not revoked, and that, therefore. they are ",per,einbefore named" in thewill, as respects the children of Christopher, in,reference to the residuary stock. The second codicil does revoke the gift of the will to the executors in trust for one purpose, and does give to the executors in trust, for another purpose, a neW gift of the 500 shares. The caSe of Lord (Jarrington v. Payne, 5 Yes.' so much relied on by tbeplaintiffs, has no' application to facts. of this case, even if it beregarded as good authority for any caSe. The case was decided in May, 1800, by Sir RICHARD. PEPPER ARDEN; the master of the rolls, who in May, 1801, became Lord ALVANLEY. One Payne, bi his will, devised real estate to and their heirs, upon trust to convey' uppn ,trusts, and, thereto, to several natural sons successively, in strict settlement, and then qirected that the residue of his personal estate should be laid out in land, "and that the estate so to -be purclllised should from time to time be settled to such uses, upon such trusts, arid in such and the like manner, as I have hereinbelore directed re:speCtingmy real estate." He appointed the trustees named tobe the 'Afterwards he In'ade a codicil, which recited that he had by his will directed his trustees to convey, settle, and assure certain r.eal estates, and, on the settlement directed to be made of "my said estates," had directed that they should be limited in a certain specified manner, and then revoked so much of the will as directed the settlement, and, "instead thereof," directed'" that in and by the settlement to be made of said estate, as aforesaid, the same estate be limited" in a manner specified. The change made in the limitation was to vary the order among the sons, and postpone William, an elder oile, to younger ones. The question arose with respect to the fund directed to be lq,id out isreal estate, whether the codicil postponing William to his younger brothers extended to that fund. The master of the rolls held that the real and personal estates were united by the will,andmade into one settlement, v.48F.no.6-27
418
FEDERAL REPORTER t
vol. 4.8.
by '\'vhiclithe named Were to take'in the course of succession mlirkeiI: onto It was contended in that caae that the codicil revoked the estates of whichthe'testat6r was seised athUi dElMh, ,and made but left the estates to be pur.. chased With personal estlita: togo to the Sllme persons, and in the same order;'directed by the will in regard to the rEial estate given thereby. On this subject thecQunSaid: "It was said that,' whenoria lJpecies of propettyis devised in a particular manner,8nd in' the same will anotht1r styacies of property is declared to'be all1nexeq to it, as. it· was, in ,the case of Da1'le1J v. Darley, Amb. 653.' or, where it,is givellto the,jiRllle personsajJ the other estates, and, by act of or of thllformeris revoked or lloltered. the latter revoked or .manifest ,the test"tor intended to I am willingifUi' the sake of argllmellt. to ,admit this; but it rtot"in any way affect this case. I admit the testator does not, by ,these WOrds,i't1clude the lands to bepurchllsed';and if, by' thewiiJ. he had given to certain persons the lands he was seised of. and had by that will directed his persoQaI estate be laid put in lapd(or the benefit of,the same persons to whom the real est,ate Was and, by a codicil,. he had given the estates ofw:hich he was ,to qlfferel1t ina different manner, and applicable to the. personal estate, the codicil,might; upon thoset'wo' cases; have the' effect of disuniting them, and the personal estate would have, gone to the Il!ame persons as if the codicil had never been made. This is,the effect oil Lord l(jidnellBeaWJle1'k;v. Mead,2.Atk. 167. It was ar.. gued that the codicil in this case does not include the personal property to be .out 'in ,the, land. oonsideri,ng the codicil as ,a revocation of the deviseyf 1t is silent with respect t() the personal estate. thatIIJust; upon theautQQ)'ity of those two cases, go exactly as if that codicil had not been exeeuted,'iiButnone oHheseargllments apply to this case, for this codicil does not revoke the deviseoftbe real estate. It the devise of the reaL estate to in fun 'foree. It does·notin any degree disthe estat\lll to be purq\!ased\lponthe settlelllent tQ be made of the estate. It is therefore .(alll)'ciollstoargne it Was a of the de-, vise of the real estate at"all:, It remains thetrust'ees, and the only alteration is in the mode of succession to bj,! directed in the settlement to be made. ,'fh'e will directed,' settlemelit'to ;certiain uses, and gave the personal estate to be laid out in land to be settled to the sanie uses. ... ... ... The wiII is not union ofrtbe. tw!>species Of, estates. The codicil alteralion with rrgl;lrd tQ that and, though the testator makes 11se of the worlf' revoke,' wm.ls not .areYOcation 'Jl,8, to. ,that union, merely an alteniUQnOf,the order of the liniitations to be inserted in the settIllment; and it 'is no niore than if the devisor, with :hiS' own hand, had inserted the of Georgeal1d' John before William. and then republished his will.,! The coqicil lea"festhe will j,n full force with regard to everything nQt nec6Ii1Sary,lmplica:tiQn, altered; snd I am clearly, of opinionthl\t; th,e settle,lIleIlt. 8S far,.as r:espected the union of the estates, I,n ill'll; I' ' ,
a
i"
,
"
In 1 Jarro,. Wills"Amer; noteS,: {Ed·. 1880)p.'348, that case seems to helboked tlie language of the court' in that, case, as! quoted, seems to anticipiite and except a case like the one at· bar;,: mistake in supposing that case to be like this Qneis the fundamental one of regarding this case as one of the non-revocation of the'bequest·tothe executors, and :change of the beneficiaries,
419
of Jb:e trust.. .There is inithis case a distinct revocation of the legacy to tQe.tl'l;ijjtees, whileintbat CRse theretocation 'was only of the direction as: ,tq ,the settlementlliOddimihltions. . .' 13Q.t:it.may well be said thai, fortheptirposesof.the question in issue, Hie in the.will,oithe 500 shares wascinetothechildl'en of James B.··,f.oJ.: the trust was to cease, 'and they were to have the shares as an /loPiPlute estate, and the trust for the children of Christopher was to cease, and!thfilY were to have the 500 shares ,0 an absolute estate. Whether a tQ, the tmstees or the children ofJallies the secondcodicil,absolutelyre\,,oked it. Theuaere fact that the same shares were R'lterwal'da given. to. Jhe, a&me trustees;. On like trusts, .for other' persons, isnotsufficient to make the transaction a mere substitution.' . 'fhe case of in re :008011.'8 Trusts, 2 Johns. &: H. 656, in 1861, before Vice-Chancellor Sir W. PAGE WOOD, afterwards Lord HATHEBT,EY, and lorci and a very' .eminent anthority, was very like the preg;. .ent case. Gibson, by his will, gave several pecuniary legacies, including oue of £500, tobi!! sister, MaryBirkett.r.rhe will then said: "Alld ali the residue' of my personal estate whatsoever I give and bequeath to all the .before· qlentioned pec.uniary legatees," excepting eel'taill ones, but not excepting, Mary, "and to be divided among them in proportion to their respective pecuniary legacies." Mary died after the will was made, and the testator then made a codicil, reciting her death, and giving the sum of .£50010 JohQ Birkett, in trust to pay the same tQ such oitha·(lhildren of Mary as.should attain the age of 21 years, and as they should severally attain that age, and; if more than one, in equal shares. The executMS"paid the £500 to John Birkett. Of the residue of the personal estate, some .£365 would appertain to the £500 legacy, and the question arose whether John Birkett or the surviving pecuniary legatees under the original will were entitled to that money, or whether was an intestacy. in regard to it. The court held, in the first place, that the residuary legacy was not to a class, but to individuals, and that, the surV'ivors of the pecuniary legatees in the will were not. entitled to the money. The counsel for John Birkett relied on the decision iIi.1.m'd Carrington v. Payne, llrl;d his argutnents were the same Its those oftheplaintiffs'.couDsel case; a.nd itwas strongly that the testator intended that' the' children Mary should have all that she would have ,bad under the will, 'andthat:the court would not hold that there was intestacy. It was urged thatcthe effect of the codicil Bame as. if the name of John Birkett had been substituted for that of-Mary in the 'bequest in the,will. ',I.'hecoult says: . ., . ',.. .
of
"The testator, being of the deatliof Mary BIrkett, and haVing, In given the £500 to John Birkett, upon trust for thechildretl of Mary Birkett; does not go o,n. to say a word us, to the share of residitewhicb also been given to Mary. Birkett, not, I have. already held.) as one of a c1ass, but as an individual, nomi'QQ,tim. Mr. ingeniously argue9 the case as if it wele govel"Oed by the authority of. Lord Carrington v. Payne, but the decision in that 'case turned upon special circurAstances. and Lord ALV&NLfiexpreasly guarded'himself against deciding a point very . ' .. , . ' ". ",r>,;
420
. FEDERAL REPORTER,
The;,oouttthen reviews the facts and·the decision in Inrd Carrington v· Payne" ,and quotes from the decision the foregoing remarks of Lord ALVANLEY, and says that the hypothetical case· put by him is exactly the<:J'a.M .oj'GWson's Trusta, and that the case of Lord Sidney Beaucle:rk v. Mead is very similar to the hypothetical case put by LOl'd ALVANLEY, and toihe GWsonCase. In Lord:Si11:ney Beauckrkv. Mead the testator devised his froohold lands to Reeve for life, with 'remainder over, and directed the surplus of his' personal estate' to be laid out in the purchase of lands, to be settled to the same Uses as his freehold lands. By a codiciL be directed certain lands so given by the will to Reeve for life to.be divid,ed between Reeve and Beauclerk during theirjoint lives. After the death ofReeve, Beauclerk sought to recover of the interests ,.and profits of the surplus of the personal estate which had accrued duting the life of Reeve. Lord HARDWICKE held that,neither. on the; :language of the codicil nor on the presumed intention of the testator, could there be any ground for holding that the codicil affected the disposition in the will of the surplus of the personal estate; Recurring to the Gibson Case, Mr. Key, for John Birkett, cited Johrz8tone v.. Earl of Harr(JlJ)bYi 1 De Gex, F. &J. 183, and other cases, as showing that substituted legacies are subject to the same conditions, and carry with them the same incidents, as those for which they are substituted. On this point the court said: "I am not aware that the rule which those cases established has ever been l'lxtended to that length; and it was' decided in Re More's Trust, 10 Hare. 171, 176. by Lord Justice when it cannot be applied to a case as here. its ,would. altal' the limltatiolls of the property. .. . . ' .
On the contention that ,the court wOuld not allow intestacy, as here it is urged thatthe court will not allow,the residuary stock togo elsewhere than with the primary I theobservatiops made by the' vice-chancellor are very, ,pertinent to this case.if He says:, . , '''rbougbtbe' court presumes' that a testator did not Intend to die intestate. it, may be driven to the conclusion. that he has done-so. in spite of the presumed intentie>u thl'! contrary. tile preaent I.am driven to that conclusjon. the codicil in 9.':lf'!st,ion, the testf\tor had his will present' bis tninl1·.·. He had before him not only the legacies bequeathed by bis Will to the pecuniary legatees' 'Mmtnatim. but the bequest in his will to the same legatees of his residuary personal estate; Yet, in the codicil, he refers excLusively to the pecuniary legacies, andtaltes no notice of the reSidue. Undersucp circumstances.I,caIlDot hold that the codicil had the effect o{passing to tooJegatee under the codicil not'only the legacy given to him by the codicil, but also a share ot' the residue. as to which it is totally siIent.. In v. Bfn'achan, 8 Ch.piv. 558, in 1878, before Vice-Chancemr M:ALlNS,One Page by. his will freehold lands in Dorset to trustees, totbe use of his daughter, Elizabeth, for life, with remaindersQveu He also gave to his trustees£3,OOO, in trust to layout the saine in the 'purphase of landsjnDorset, an4 to settle the estates so to be Jo the same Udes declared will ConcernhislaIld!l Dorset. By a codicil he revoked the devise of the hold lands in Dorset, and, in lieu thereof, gave the 'same' to the use of
CpLT 'II. COLT.
421
his trustees until the oldest soh of said Elizabeth should attain age of 21 years, with remainders over to the use of other persons than said Elizabeth. The question arose whether, the devise of the Dorset estates having been revoked by the codicil, the -gift of the £3,000 to be laid out in the purchase of lands in Dorset, to be held upon the same trusts, was revoked by. implication. The court said: "It may be that the testator intended to revoke the latter gift of £3,000, and I think, ip all probability, his object was to extend the Dorsetshire estate; but he has omitted any reference to the £3,000 in his codicil. 'rherefore, on principle, there is no implied revocation. Itbink that, notwithstanding the case of Lord Carrington v. Payne, no revocation takes place unless a clear intention is expressed. Darley v. Langworthy, 3 Brown, ParI. Cas. 359, sufi" ports that view, and the case of Francis v. Collier, 4 Huss. 331, is in conformitywith that principle. I think, therefore, that the rights of the partiell are the same. with regard to the £3,000 as if t.he codicil had. never been made, and that Elizabeth Strachan is entitled for life under the bequest in the will."
That case is directly in point in support of the decision made on the 9.emurrer in Colt v. Colt, and against the positions of the plaintiffs in this case. The q,uestion of the proper construction of the will and codicils in reference to the points raised in Colt v. Colt and to those now raised has been considered very much at length and with great care, and in reference to all the views urged for the plaintiffs, because of the large amount involved, and of the thoroughness and ability with which thlil case was presented by the counsel for the plaintiffs, and of the fact that the decision of the highest judicial tribunal of the state of Connecticut, in 33 Conn., was impugned as rendered without much consideration; and without a full and fair hearing of the matter in question. The result is that, on principle and authority, the claim of the plaintiffs must, on the merits, be, rejected. But, even if it were otherwise, the Connecticut suit is set up as aha.r to the present one. To this the plaintiffs repJy that the Connecticqt suit was one against the three executors, as such; and certain legatees; that the present suit is one against the threy,executors as trustees, andaska for an account, the other legatees and theeJCecutors, as such, being added lIB defendants; that the defendants Colt, Hubbard, and Jarvis had three capacities,-(l) ¢XElcutors; (2) a personal interest each .lIB a legatee; (3) trustees of the· children of Christopher; that they were parties. to the Connecticut suit only in the nrst two of those capacities; that only in their capacity as trusteeR could they receive the trust property from the estate; that there was no decree against them as trustees, and, as trustees, they are not bound by the decree; that, because they were not parties as trustees, they are not resp0nsible as trustees to the plaintiffs for their conduct in the case; that they denied, in the Connecticut case, the title of their cestuis quetru8tentj that they defended only as executors; that they aver, in their answer in this suit, that as executors "they did not appear or act particularly as trustees for or on behalf of" the plaintiffs; that as .executors and as trustees they are different parties, though. the same persons,. and are to be regarded as if the executors a.nd the truBtees were persons.; that they did not appear in the Connecl.icut suit
422
FEDERAL' REPORTER t
in,tb& wHieh1 tbey:are sUI',d'intliHl'sua; that' they had no Hight, to lspellkas trustees1in 'that SUiti' anymore than, if other persons bad'beenth'e trustees;'thit their Tights, astrusteeseo1Jld not be a<1judicaredi that &\lRwithout ,their firSt Ij)lUng made parties to it as trustees; theyrought to have, set up, that, as trustees, they were not parties to it; and that the question; passed ,on'in 33 Conn. was not wlie.thet the truiltees'tookashare in,the residuum in rel'lpect to the 500 sharesrbut oeChristopher took a share. In additiol1 t9 this,tre, plainti,ff$'Call atte'I1Hon to tbe brief put in in the Consuit l>Y on of the case in 33 Conn. That brier QpIltende4 thlltt. J ames teak only a life-estate in his share of the resid,uarystock, it having heen on the demurrer that'hehad a share; that the 'stock, primary and residuary, given to the tw:o children who died befo'rethe testator, was to be of as thouf.{h \vas no will; and't1:Jat Jarvis a legacy of stock and Deming dia ;oot, These were questions 1, 3, and 5, and were decided in accordainoMiith the views of'the brief. The remaining.point considered in the 4) was as to.the children of Christopher. The brief urged that those child'ren were not entitied!to share in the residuum of stock in respect to the 500 shares. (1) because the residuary clause excluded them, by using the worcl:''lhereinbefore,'' citing Hall v. Severnej and (2) because there waS nothing in the seoond codicil which, expressly or by implication, gave a share to them in the residuum. These vieNS were sustained· by the court. The opposite views were presented by Mr. Henry C. Robinson, claiming to represent the' children, as stated in 33 Conn., and as appears by the proofs., He argued the case orally, in the interest bf said children, and brief. He maintained the right of the children to share in the residuary stock in respect to the 500 shares, and,u\'!ged that, even under the word " hereinbefore,"the primary legacy tothe'ttustees rema.ined, with a mere of beneficiaries. He cited five df'thecases now cited by the plaintiffs, including Lord Carrington v. Payne, ,and cases nptnow cited, as appears by the minutes of argument takell' by the.reporterofthe court. : ' 'The objection that, the executors were not made parties as trustees seems to be very technical,'andentirely without merit. The will aud codicils were before the court, with' the fact that the children of Christopher were also before it, by themselves and by the guardian of those of them·· who were· miMrs, and that all the defendants in tbe Buit were brought in as having or claiming an interest, "either legal or beneficial," as the petitiol1said, in the residuary stock, and as being the parties Whose rights it Was necessary to ascertain and fix in such manner as to bind those claiming 'an interest ili such stock. If the legal interest in the 500 shares was no'll in the children, it- waain the executors. The fact that it was in the in trust did not make it any the less in the executors. It'ltasinthe executors,ll.SBuch, in trust. All testamentary property the titie to which is in ,ex:eeutors is in them in trust. The three trustees,beingpartiesa8$xecutOrs,. werereaUyparties as trustees. The answer does ndt.sil.ythat tiS executorS they did not represent the I
COLT'll. COLT.
423.
trust for the· plaintiffs. It says, that, being cited to appeAr as executors, and appearing as executors, they did not appear or act" particularly as trustees for or on behalf of" the plaintiffs, because thepJaintiffs "were duly made parties to the proceeding by themselves and by their guardian, and ·appeared therein by able counsel, and were fully heard." The trust was given to them as executors, and as being executors; and so, when they were made' parties as executors, they became parties as representing the trust and its subject-matter and its beneficiaries. One of the contentions of the plaintiffs, is that, when the same person is by a will appointed executor and trustee, his probate of the will is !Ul acceptance of the trust, and by becoming executor he becomes trustee. This being so, when the executors were made parties as executors, that was all that was necessary. The secondcodioil directed that tbeexecutors,as executors, should hold the stock intrust for the children of Christopher, and when the suit was brought against .them as exeoutors, their eestuiB (jUetr1.tstent also being parties,and the subject of the suit involved the rights of the trust and of the beneficiaries nominatim, it is only technical criticism to insist that they should have been cited as, trustees as well as' executors. The executors, by their counsel, Mr. McFarland and Mr. Curtis, on the argument OJ) the demurrer presented the case in favor of these plain., tiffs by resisting fully and thoroughly the claim of J!1mes B. When that wasdeoided in favor of James B., the decision against the claim of the children of Ohristopher followed logically, as the \Jourt said in 33 Conn. They had a large interest in resisting the claim of James B., and the principle of that claim, and in maintaining the construction ofthe will and codicils, urged by the executors in opposition to the chLimof James B. If James B. were to be defeated,. they eould, .expect to, share in residuary stock in respect of their 500 shares; but not if James B. should succeed. In opposing James B., the executors were maintaining the claim of the l'laintiffs; The evidence of Mr. Hubbard shows that Mrs. Theodora G. Colt,the'mother o( ,the childreIl,of,Christopher, and the guardian of the tb:ree. minors, was warned by him that a decision in· favor of James B.' would be damaging to the interests of bel' children, and endeavored in vain to induce her to oppose the claim of James B. He also says that after. the decision on the demurrer be saw Mrs. Colt, and" explained to her tlle situation," ltnd told her thllt there might be serious damage to the interests of her. children,. and asked. her what course she desired. ahould be taken to protect: their rights; that she said that Mr. Henry C. Robinson was the counsel for herself an.d the children, and would act for them as their indepeQdent counsel, for the maintenance of their rights; and that Mr. Robinson did act in the matter of the findings made by the superior court preparatory the resel\'ationofthe six questions for the BupremecQurt of errors,ll,nq also in the argument of the questions for the, children in that courl..Mr.s. Colt admits that,before the argument of th6' demuqer,Mr. Hubbard asked her if she did l1otintend, in behalf of -her minor ,children, to .oppose the claim of and she said,.she did the ip-
teres'ts of her children were' identical with those of the otherlegatees, and theiriterests of her children would be sufficiently protected by the opposition which the executors intended to make to the claim of,James B. She, sayl! that he said that her opposing it personally would strengthen thtl"CllSe against James B., and her'children's interests were involved in the stiit; tllatshe said; "How?" and he said, "By decreasing the general residuum;" .that she declined to oppose the claim of James B. personally; and that Mr. Htlbbard never hinted to her "that her children's interestslwere further- endangered, or that there was any possibility of their being endangered, in any way that they would not ,be protected by the and trustees;" n is not important to determine whether the recollection of Mr. HubbattFo'r of' Colt is the more accurate as to what transpired after the lapse of 15' 'years. It is not probable that any party or counsel comprehended fully -in advance the scope of the decision' in favor of James B., as itappear(;Jd afterwards. His claim was looked upon not only as untenable/but as foolish, wild, and crazy; and so what all the effects of sl1c6ess might be were not likely to be fully appreciated beforehand. But, however this may be, the executors faithfully maintained theinterests oft-he children-of by faithfully opposing the claim of James B. As to 'the conversation with Mrs. Colt after the decision Of the demurrer, so testified to by Mr. Hubbard, Mrs; Colt denies havany conversation with Mr. 'Hubbard after the decision on the demu:rrer, in relation· to her taking' any action to protE'ct the rights of her children, and denies specifically what Mr. Hubbard testified to on that i subject, as before recited. She also denies that she ever employed Mr.<RQbinson as couDsel, although she admitsthut she was informed by her'son11Mward, before he died., which was in October, 1868, that Mr. Robids6n'had appeat'ed and argued tor herself and her children in the James B.'Colt suit. Mr. Robinson testifies that he was retained by Edward for the interests of the minor children ofChdstopher, (Edward D., Le BarOl} B., and Samuel P.,) and that he entered ,an appearance for theni in the· suit just before' the demurrer was. argued in the superior court. Mr. Hubbard says that, having been informed that Mr. Robinson was the counsel for Mrs. Colt and her children in respect to their intl'll'est under the will,he applied to Mr. Robinson to act in their behalf in the argument of the demurrer; and that Mr. Robinson aaid that he was their oounsel, but was not authorized to oppose the claim of James B. Mr. Robinson testifies that Mr. McFarland, the counsel for the exeoutors, expressed to him the opinion that the children of Christopher had an interestin the suit larger than their share in James B.'s interest in the residuary stock, and that the amount coming to them under the codicil was very likely to be unfavorably affected by the overruling of the den'lurrel'; and that he communicated this.t() Edward D., who refused to allow himtoJact'for the minors against James B. Mr. Robinson also testifies distinctly to the ratification to him personally by Mrs. Colt of his elnploymentfor her minor children in the James B. suit. Mrs. Colt as distil1<ltly denies 'that she ever employed Mr. Robinson, or
425
caused him to be employed, in behalf of her children or herself, in the .James Eo suit. The plaintiffs contenll that all that is shown is that Edward D., who became of age in May, 1865, shortly after the decision of the demurrer, retained Mr. Robinson, in February, 1864, for himself alonejand that Mr. Robinson went on under a mistake, supposing was to appear for all the minors and' for their guardian, while she a.nd all but Edward regarded him as counsel only for Edward. The weight of the evidence is, largely,that Mr. Robinson appeared for the min6rs 'and for ,their guardian by the authority of the guardian. He presented ;",hll.t were the merits of their case faithfully. 'the real decision against them was made when the decision was made in favor of James B. ,What followed was "a logical necessity," as Mr. Hubbard said inhi$: letter to Mrs: Colt of May n, 1866. The executors fully defended the interests of the children against the claim of'JlimesB. They say, in their answer in this suit, that they employed counsel to appear in the came; and present for the consideration of the court such ques.tionsregalxiing the construeIion of the will as should appear to them. well founded"in'the law, and that that was done by the counsel. The counsel, Mr;'McFarland 'and Mr. O. S. 'Seymour, saw that the cotirt must.bome to the conclusion it reached, notwithstanding the positions taken by Mr. Hobinson. The executors represented all parties interested in the stock, and did not hold any stock any more in trust for the plaintiffs than for any other legatee, so far as regarded their duty as executors, summoned in the suit to present to the court founded in law,'and just and right in respect of all thelegatees interested, in regard. to· the construction of the will and codicils and the' distribution of the residuary stock. The views they presented prevailed, not becausetheypresented them, but in spite of Mr. Robinson's arguuient and of the argument for the executors on the demurrer, on the other side,and there is no ground for the suggestion that if those views, whidhsustained the claims of the other legatees against those of thechildren of Christopher, had been presented by those other legatees through some counsel who were not counsel for the executors, the result would have been different. The executors represented all the legatees, imd were entitled, and it was their duty, to present to the court what they regarded as the true view of the law as to all the legatees. It was open to any legatee to present different views. The executors themselves were legatees, individually interested in the residuary stock, and in increasing it by what the plaintiffs claimed. This is made a ground of impeachment of their action. But they were interested as executors and as ibdividuals, and were summoned in both capacities, and could notdi'vest them'selves of their individual interest or of their interest as representing those who had an adverse interest to the plaintiffs, and were not called upon to assume a position hostile to theirowll individual inwrE;lsts or to the interest of all except these plaintiffs. There was nothing deserving ofanimadversion or out of the way, legally or morally, in what they did. They violated no duty, and committed nofraud. They took care that the minors,and the guardian should be represented by special ,.:, counset IBabellaw,as of age, and was served with process.
"vol. 48. case is an purporting bY( :Hubbarli;& M;cFarland, attlte deny the truth, of the allebillo! cpnta.inell- l 811d therefore ,nil the cou,tJOf:trial. ,The anE!wer of DeceJllto beanerror,8s theorder of 1865, court had demurrer, "aqdordered :the ,to/Lnswl:jr, over," and, ijmt,,"by legal tpe J(f()p16S to tel'ID of this COl,lr.t"wpen .he parties ·again.appear,. l\ll.d are ,at a general denial:9f ipthe bill, as on ".The parties" respondents." ",In the ppor. part of the .ordert,thecourt had nuxpber, being!llL there were, inclu,dingthe their guardian,and set forth of th,eID ,.by ,name" were :mi,nors, and that Theodora D. was their and thai the respondents were. interested in the estate a!'l perspns tc>.. 'Whom bequeslll and devises WElre Jllade by the ,wm codicilIJ, OIl to find. the petition ,was duly served and at term, 1864, "when the parties appellred; a,nd the sllid minors were duly repgo.ardiaps." toCaldwelLH.Colt and his guardilln,)andthat.t1w cause was ,continued tpa time when "th6reto the petition, and "the parties" were at issue .t4el,'.e<Jll" and the. court. "having heard them by, their respective counsel, adjudged demurrer, wa,s; '. insufficient; .,alil<;! overruled the same,",anli .the qr4er proceeded ,8sbefore. recited, in respect to the 'answer.. It, is. repeated in the decree of March term,1866, that" the responqents ,appeared at the July ternl, 1864, and delpurred; that the demurrer was Qverruled; and that, by legal continuan,cEl!J"the action ,came to the 1865, and filed theiranswer"as on filet . Then the·decreegoes on to; state that the court, on a, hearipg, found, as facts in the case, thlj.t "th(l petition was duly served, and returned" to the court at the July,term, 1864, "when th.e parties appeared py their respective counsel, and, the said minors were duly representeQ. by; their guardians, and the said. cause was continued"Jo a th:ne "when the respondent filed a dem\1.rrer to saidpetitiop, and the parties were atissue thereon, and this court, having heard them by the,ir respective .counsel,adjudged said deD;lurrer insufficient, and thl:1' same, ordered the to answer over, and, by .removes aqd continuance!,!, the petition comes to the prestermor, court,.when the parties again appeal,'j ,and are at issue upon denial of,the in the oill, as on file." "long ;t):lese.ordersa,qd findings of a court, which bad jurisdiction o,f the sil'QJe«t-matter and a£. the parties E!ta.nd, this court can11ot, in this .collateral sl;lit, take any cognizance of the point that the executors, even JOhey were before tile ,superior cou,rt as, trustees, opposed the claim of if there Were Qtherwise l1nyforce in that point. This is :J:l9t,l!A appell/!-te court.,4nY(lrror in.the decreeof the superiOl: court must' be' by,it·opa Nor ha,s this Jluit any .Thf to. I/-nswer of "tqe;
COLT ti.coi:Jr.'
427
such object. This same, view applies to the point that Isabella did not employ counsel or appear.' The decree finds that she appeared, and that, as a respondent, she answered. If she did 'bot, shewllS of age, and was . served with process, and so the decree went against her by default. The same view applies to the three minors and their guardia.n. Theywere all served,withprocess. Each of the two decrees finds that they all appeared,and that "the said minors were duly represented by their guardians," (which includes Caldwell H. Colt, as well as these Iilinors,) and tpat these minors and their guardian answered by the general answer of all the respondents. This must stand as verity till abrogated by the state court. There is no force in the suggestion that the rights of the minors could not be adjudged till the youngest should become of age. If there was anything in this point, it, was one for the state court. At most there was only error, not want of jurisdiction. The point could have beAn raised before the state court. If it was. not, it cannot betaken here. rights of the minors, it manifestly As the state court did adjudge was of opinion that they' could be adjudged. and, if it erred in that opinion, itaione can correct the error. But, aside from this, there was nothing which required the determination of the rights of other parties or of the rights of these minors to await the arrival of the youngest of them at age. The point is taken for such of the children of Christopher as were minol'ts thabnoguardianad litem was appointed to represent them in the James B. suit; that their general guardian had no power to represent them; and that she did not in fact' appear in the suit. The last suggestion has already been considered. 1.'he findings of the two de" crees, tbat lithe said minors were duly represented by their guardian," must stand till set aside. This court cannot set them aside in this collateral suit. This is the law in Connecticut, (Coit v. Haven, 30 Conn. 190,) aud the.lll.weverywhere. The question is one of regularity, not of jurisdiction;. the p;uardianand minors having admittedly beel1served with process. Whether the guardian cotild/ represent the minors, or whether agnardian ad litem was necessary, wa.s a question of Jocal practice, and is settled for this court by thewbrds "duly represented." Thompsonv. Whitman, 18 Wall. 457; Ohristma8 v. Russell, 5 Wall. 290. Irrespective of. tbis, it seems quite clear that by the Connecticut practice, guardian is made a party, and summoned and served for the minor, it is not necessary to have a guardian ad litem. Reeve,Dom. Ref" p. 267; 1 Swilt, Syst. p. 217; 1 Swift, Dig. p. 61 j Wilf<l1'd v.Grant, Kirby, 114. . . ,In,thebriefofthe plaintiffs there is strong criticism on the that the executors each had a legacy of 50 shares of stock and its consequent residu8rystock;, that Mrs. S. Colt, oneot" them, had Ii legacy of 1,000 shares of stock and its consequent residuarystookj that she was also heireat law of one-third of 1,000 shares given to the two children who died be tore the testator, and which was held to be intestate estate,and of.ti01le,thirdof the corresponding residuary aharesj· that she was also
4,28
FEDERAL REJ;'O,RTER,
C)aldwell H. Colt,who hada legacy of 500',shatesand its stock, and was entitled to one-third· of the said ina,pd its consequent .residuary shares;· that Jarvis, as administrator J., was entitled to the same number of shares, as legacies and as.iiitestate estate, as Caldwell H. Colt; and that the residuary stock claiIrled by the plaintiffs, if not going to them, would go in large part to the execliltors individually liUld in the aforesaid capacities. It is also commellfed·on in the brief that, while the' executors opposed the rights of the plaintiffs, "they were not slow, or wanting in zeal and energy, in supporting:their own claims under the will," and particularly those of Mrs. S. Colt and her family; that they maintained before the court th,a;t,U\.elegacies of stock to the children of the testator wh0 died before him qqt lapsed legacies, so that such stock would go into the resid.1,lum, te? increase the proportionate share. of each legatee therein, but inteliltate estate,and .so would .gd to Mrs. S. Colt and the two children the testator; and ,that they maintained the right of share in the primary an,cl the residuary stock. It is urged fact that the court acceded to the g11Ol1nds taken by the executprsupon IJach aI;ld every questi()ll," including that as to the rights of and that" the reoord and the conduct· of the defense . show," thilt.the case of these plaintiffs." was allowed to .suffer, and all advantage of position before the court was sacrificed." The observations' a full answer to the8e suggestions, and show that. leg1J:lly, ,actually, and morally there. is no valid ground of complaint against ,ipeaction of the· executors. It is· deemed unnecessary to consider any questions as to the effect of dl;lcrees of the courtof probate in settling the accounts ofthe executOl'S, or, the distribution, or as to the effect of the releases and discharges given 'by. ,the plaintiffs, 'or as to the· .effect of the alleged laches of the' Pla.intiffs; The ca,se has ,Peen considered on the merits, and on the effect of the ,suit in the. Cqnnecticut COl1'rt, because the questions arising on hl,l.ve been deemed to be Qontrolling and dedisive against the cl&ims made :iP this suit 9Y the plailltiffs. The children, of James B.. claim in their answer (1) that their father wllllentitlell to a fee, and not a life-estate, in the.574 26-31 shares, and tqat they, as his only heirs at law, are entitled to. a fee in said shares; (2) .that the lawful issue of James B., in the residuary to the legac)' of 500 shares which the original will gave stock, in to.the e.xecutors in trust for the issue of James B., they to have such shares absolu,tely,withtheacquqlUlations thereof, when the. youngest of them should have reached the age of21 years, was not taken away by sny codicil. to: the, will; that they are entitled to a share in the residuum of in reflpect to said legacy of 500 shares; and that there was, DO of their interest in said residuum. They do not claim that the reJ,llllinder to them, in respect to the primul'ylegacy of 500 shares given to their father for life by the original will, which were to go as estate to bis lawful iS8ueafter his death, was not revoked an by the first codicil., They were not made parties to the James B.suit. consequent
COl.T 11. COLT.
429
nor did anyone represent them thereiit, unless it was their father, as plaintiff, or the executors, as defendants. A brief is now presented on their behalf by Mr. George G. Sill. Of course; the' most they can claim in this suit is the 574 26-31 shares, and the accumulations thereon since the death of their father. For anytHing beyond that they must bring their own suit. the petition of James, B. in his suit claimed so much of the residuarY'stock as appertained" to the 500 shares which the will gave to him for life, or a life-estate in it. The Connecticut courts decided that he took only a life-estate in the residuum, and not an estate in fee, or, as the decree says, "a Hfe-estate only." So far as the children claim 'an interest in the 574 26-31 shares as heirS at law of their father, they are, as they claim him; bound by the adjudication as to his interest, in thl'l suit which he brought, and in which he claimed that his interest was aree,and in which that point was expressly raised and pl1ssed upon, adversely to him, and so adversely to them. It wllsnotnecessary, in thatrespEloi, that they should have been parties to the suit. Aside from this ,the deCision was correct. The ground on which it was put by the of errors (3300nn.) was that stich wlis the clear intention oithe testatbrj that the tesiduary Clause gave a ratable proportion oithe residuitry stock to the persons and 'parties to whom the 500 shares were given, namely, James B. Jl.nd children, to be enjoyed by lI.life-estate in one and a remainder in the others; without the revocation, it would have been plain that, as they were all parties to the original legacy, they must aU take in like manner in the residuuln; that the revocation was not SUffiCiently broad to take away the interest dr James B.in the residuum, 'while it was broad enough to take away that of the children; and that there was nothing in' the tevocation to show an intention to enlarge the interest ofJames B., and suoh could not be'the legal effect of a' mere revocatian of the interest of the children. These views are sound. His children urge, as reasons why he took in fee all the stock which he took under the residuary dause, that,as apeman before named Inthe will, to ll. legacy of stock was before' given by the will, he was to said about the nature ofthe have a ahsrein the residuum, nothing estate; that the expressions'" ratio and, proportion" and "ratable proportions"refer solely to the number shares, and not to the character of interest; 'and that the remainder either went to James B. ,01' falls into thetesiduum, or becomes intestate estate; They argue thatit does not go into the residuum;, that the other legatees are given a share only in the other shares than this remainder because they are not given any share in any remainder; that, if it goes into the residuum, it must be divided among all' the primary and, as James B.was one; his children must, as representing him, h:...ve a share bf it; that it does not become intestate estate; and that it must go to the children of James B., as his heirs. There does not appear to be any force in any of these suggestions sufficient to give to the children ofJames B. any ahare in such remainder,as representing their His interest in the shares was ' a life-iriteTest, and died wIth him.
430 , q( 590
'"01.
the legacY:ll)ade by the \\Iill it;l trust for the iSSUE! of James :a,., The cllj,im t.hAtitdid not, thQugh, thqir,answer , ' , , '" , ,,' ,: "."" 'I;here af3to ,diapositi()ij to be made of the 574 26-31 shares of stock which are in the hands of the by the tef/:nination of the ,Qf,James : They beldbtributed as residuary stockJnlikemllinller B., had never had any est respeptstbe di:vidllPds.whichbelonged to them up tq <leath. Cltrrywith them ,tbe:dividends on ,them since his death,eitherwmr.or without interest On, those dividends., It is sub· miH,pbythe exe,cutoJ'f.! par:t of the estll.teshould,like the rest, be settled in the court of. p,robate i t,Jiakas the special claims of the pillintiffsare rejected, the ,standa as if, it were,a bill brought solely t!> d,eterminethe I!hllre of ellQh of the plaintiffs in the 574 shares. as assets of the ,testator, there being now no litigated question, and the distribution being purely a Jrlatter of arithmetic; that the rest -pf stock, was distJ;ibuted. by. the executors under the will, and their, accounts of the difltribution were;rendered rto the probate court; thatthefle 574 26.1U shares are aU the assets which the estate now and the funda for the payment of the fees and expenses of the ex· ecutors,al),d. ,of the fees of I,lounsel ,and :other, expeml6t1in this suit, and in .anyother suit, pastor that it·:properly belongs to the court of probate to dl;ltermine .theamount Oflluch fees and expenses; and that it ma,ybecome neceSsary to sell the s.hares.()r some ,of them. and the prob,ate .court is the proper courttQ direct su.ch sale. In analogy to the jurisdiction which the superior cour/i'flJl:ercised in declaring what the of the, resid U, urn of stock. WlUl, and who of. the parties to the .. suit Were entitled to. it. apd in what proportions. it seems properu.at court, 8:11 the· parties ,interested being before it. and the pleadingsp!ing, I!uch as toa,llow such a course, shQ'UJd, by its decree, qeclarELtheproportions. in,:wl,1.ifh ,to the fj74 26-31 ,sll;ares. 'fhi. qJlestioll has Do.tJbeen, prestmted, and thepar. ties are-epptl,ed Wb.e ):leard as to the' figurelJ. shall agree. sh9\11dtheqre1l)it the matter to the executors, to carry out The the' on tI}e established by it, as to proportions, subject to. the ordinary jurisdiction of tb(;!. court of probate as toal1oYVBnces of said feea and expen8esout of the {und, and IlS; tQ turning the ,shares into money by.a. sale o(SQme or aU m8.Y find necessary, but without relativ.erights'of the parties in, the shared as established by th,edel,lree. , This. ,1,l()'Ufse ispI'Qp.er,in ordeMo protect the exother: frornaQY otber suits. Or other James B./lUit, in reSPlilct to the judged in, whjch: ,8., decree in not af.. fqr4 if it werept11}lRc,gW::re,6ciillmissing, bill..Thedetlree ,should .coo" distinQt ·· W:l;tCcords,!J!fJe·;wjth :the )na:de, by tl),l;lpJaiAtifl.&:in ,the: bill; and as to the claitnsQf the children of James B., and should charge the plaintiffs with the costs of the suit.
481 ·Ji
, j
,1b1NWlCX 11. WHElllLBB. ' i t-,
('::'!
1..
, . Itt aauit to cancela: jtidgment renderedfot;thc:i l)alance'of a debt after foreclosure elf a mortgage. alleged an agreement that htuhould turnover the to the mortgagell in,fu.ll.paytment, but that{ being unaple to make a good,title becaUse'of pending suits agliinst him, an atnicable foreClosure was had,and the judgment for the excessw8.B left unsatisfied" by neglect or: oversight. Held that, tbe evidence being doubtfll1 011 this Poillt, .the fact that no to enforce the judgmen't was made for'l'; years would tUm the iii' 'tlie mortgagor's favor. A power of attorney expr!IBsly authorizing the agent ,to',seU, convey, or mortgage tbe prlpcipal'8 lands in Iowa, and collect the price thereof, and constituting him general attorney in f/ict to transact any or all busineaa for U8, * * * of any AND SPlIOrAL TERMS.
'
-L',POWEa8 01'
·
ltind,whataoever.in housell,t · · and satisfy any mortg,+ges made or to be made t{) us, " etc.,-confers power to agree to take certain lands, by a mortgage, In full satisfootion of tliedebt secured thereby.'
:411 to give)lp!ill the land opvere'ill1y a by an alnloable fore. t:lollureslJit, is' a sufticient consideration for'an agreement to accept the land in fUll of the debt, inc11;1ding any deftOl.ency thatJDjgIit. remain after tile ·foreolosure sale. .: ; '
TOSATJSFy-OONIlIDBRATioN. , . '
:, ': ' ..
In Equi(y.
Bill to tll\.nceijudgmellt. John N. Rogers, for co.mplainant. . L .. M. for
MCCRAiy;,J.. js abilJ in equity praying tain appearing upon therec()rds of the district court of f)cott cpunty, Iowa, in favor9f the defenda.nt an,d against the plaintiff, ontbe groulld that the has. been settled and satisfied. The,judgmentwas rendered on the 18th day of February, 1861, in ,6 suit for the fOTeQlos:ure of a mortgage real estat.e. The mortgaged property was soldunderthe Judgment in)881,6rid bought in by Wheeler,for smd the sheriff's deed.was immediatelyinade to him. . This 1;llilan.\le unsatisfied on the recqrg, :whioh now amounts,inoluding i'uterest at 10 "per cent., to something OTer 82,000. No attempt was ever made to collect this balance until De6ember, 1878, about 17 years after the date 'o,fthejudgment, when it general execution was issued,and attempts were made to enforce its payinent, which led to the filing of this bill, anc1 the allowance of a temporary injunction to restrain, until further order, the _collection of the judgment. The note and mortgage on which said judgwas I1endered were- made by complainant, James Ren,ment of wick, to defendant, Wheeler, April 8, 1857, for the purchase money of a piece pf land in Davenport, then purchased by Renwick frotu Wheeler through Wheeler's agent and attorney ,in fact, Erastus Ripley. Wheeler re1!ideg in :Pennsylvanla, and 'Ripley in Davenport, Iowa. Renwick, -who al$9 resided in Davenport, made certain payments on the mortgage .debt, amounting in the to $565. The StiUl secured by the .with interest, and the mortgage covered, beaides i .land .purchased Wheeler, adjoining tract, fOl'wbich
lena