Howard v. Howard

19 Conn. 313

• Court: Supreme Court of Connecticut
• Decided: July 15, 1848
• Status: Published

Opinions

Ellsworth, J.

The appellants complain of the distribution of Warner Howard’s e state, made under an order of the-court of probate. They say, it is unequal; that too much real estate is set to the heirs of Julia M. and Emily ./., two daughters of said Warner Howard, who died before the distribution was made. It is true, these shares consist chiefly of real estate, while the shares of the rest consist, to a much greater extent, of personal estate. But does it follow, that the portions are unequal 1 Can we, as matter of law, decide, that a distribution is unequal, because the portions are not made up of equal parts of real and personal estate ? The property was appraised before, and if necessary, at the time, of distribution ; and there is no complaint of any inequality in the value of the shares, but only that too much real estate is given to the heirs of the two deceased daughters. The fallacy of the argument is in the assumption, that under the will of Mr. Howard, the estate shall be divided as if it was intestate, under the 30th section of the statute for the settlement of estates, and so that the male heirs shall have their parts in real estate. We think this statute has no application to the case. Besides, the 30th section of the statute, even in cases of intestacy, is by no means imperative, nor, as we believe, generally carried out: but obviously, it has nothing to do with testate estates. If the testator directs his estate to be equally divided, or gives a specific rule, and there stops, the court of probate has only to see, that, in the one case, there is an equal division in value, and in the other, a compliance with the rule given. We see no inequality in the shares : so that were we to break up this settlement, we know not what better distribution can be made. We can see, that it might be exceedingly injurious to all the devisees, to have the real estate, by itself, divided into six equal parts, and then the personal into as many more. And further, if the statute of distributions is to govern, we think the 31st section of that statute would go far towards sustaining the distribution. Had personal property, instead of real, been set out to the heirs of the deceased daughters, it is certain, the estate of Mr. Howard would not be equally divided among the surviving children. Without, however, dwelling on this point, we are fully satisfied on the other.

We advise the superior court to affirm the decree of probate.

Church. Ch. in these views. J. and Storrs and Hinman, Js., concurred