Waite, J.
Numerous questions have'been presented - upon the record, in this case, for our consideration. But as the case comes before us, by motion in error, if any one of the reasons assigned for the reversal of the judgment of the superior court, is deemed sufficient, that judgment must be reversed, whatever the court may think as to the validity of the other reasons.
We shall therefore consider only some of the principal questions involved. One of them is, whether the whole expense of establishing the will, before the superior court, upon an appeal taken by one of the heirs at law, was justly chargeable upon the property devised to the residuary devisees, and the order of the court directing their lands to be sold, for that purpose, was properly made.
Where an appeal is taken, by an heir at law, from a decree approving a will, the controversy is not against the executors, but against the devisees and legatees, who may claim the estate under the will. They should be made the defendants, and brought before the court. And it is their business, if they think proper, to assume the burden of establishing the validity of the will.
The law, upon this subject, was correctly laid down, nearly half a century ago, by the superior court, in the case of Curtis and wife v. Northrop, exr., reported in Swift’s Evidence, 355. The authority of that case lias been sanctioned, by a long and uniform practice, and the approval of this court. Comstock v. Hadlyme Society, 8 Conn. R. 254.
The court, in that case, held, that “ in all cases, where the appeal respects rights and claims contested between heirs, devisees and legatees, the expense shall be defrayed by the parties in interest; and for this purpose, they all ought to be notified, and made parties on the record.”
In this case, the executors, as such, had no interest in the controversy ; as legatees, they had an interest. Barber was entitled to a legacy under the will of two hundred dollars. A legacy of three thousand dollars was given to the widow, besides furniture and other articles, to a considerable amount, and the use of a portion of the real estate. Other persons also were interested, and all were made defendants in that suit. And yet they are made to contribute nothing towards the expense of establishing their claims under the will; and [417]*417the whole expense is thrown upon the property devised to the appellants, because they were residuary Revíseos,
It is true, these other persons were not bound to appear and defend, unless they thought proper so to do. The appellants might have assumed the whole burden oí the defence, and all the expenses attending it. But does it appear, that they have done so ? It is insisted, on the part of the defendant, that it does, from the renort of the auditors.
But we do not w tuN-1 'eg 'hm i ¡, I • ’ mis, that the defence v. a • i i d 1 p - t 1 ‘ c liters, with the -; that the expens". ,>v¡ i ’ - • • ’’ 1 1 ’ by and properly cbm •< d ae *h ■ ■ 1 . 1 V‘rc found, that the a¡»p< I'.mi, j M‘' 1 ,. ! 1, '■ h '■ i > >*e expenses; or that du,,r laiics ,.,ig..t b„ tdu o, Jer of the court, for that purpose.
The auditors were appointed by the parties, to take the account, and find the facts in reference thereto. So far as the amount of the charges, and their reasonableness, is concerned, perhaps the finding of the auditors is conclusive. But the report sets forth no facts justifying the inference, that the charges were properly made against (lie estate. The mere fact that the appellants assented to the course pursued bv the executors, in the defence, in our opinion, is not sufficient for that purpose. To justify the course pursued by the executrix, it is necessary for her to go further, and show that the appellants authorized her to pursue that course. This a majority of the court think she has failed to do.
It is said, however, that it is the duty of the executors to cause the will to be proved; and consequently, they have a right to charge the necessary expenses attending that proceeding. We do not mean to be understood, as saying, that where there is no controversy respecting the validity of a will, the executors may not cause it to be proved, at the expense of the estate. But they have no right, as in this case, to carry on an expensive litigation, and reimburse themselves out of the portions given to the residuary devisees.
The defendants in the suit brought by the heir, stood much [418]*418in the same situation, as if they , had been defendants in a ■suit in chancery, having different interests in the subject matter of the suit. All, or any of them, might appear, and defend, either jointly or separately ; and any agreement as to the manner of defraying the necessary expenses, might be enforced in the one case, as in the other.
We are therefore of opinion, that the superior court, in this respect, erred, in affirming the decree of the court of probate approving of the administration account.
2. Again, it appears from the record, that the executrix charged in her account, which was allowed by the court, the sum of 430 dollars, 69 cents, for her support during the settlement of the estate ; and the sum of 480 dollars more, for interest upon the pecuniary legacy given her, in the will. We do not see upon what ground this proceeding can be vindicated; — nor why the appellants should be charged with the payment of both these sums.
The testator, in his will, made such provision for his wife, as he deemed adequate and proper, and such as, it seems, she was willing to accept. Shortly after his death, she caused that will to be proved, and went into possession of all that was given her under the will, both real and personal, and in that possession, it does not appear, that she was ever disturbed. The appeal, indeed, delayed the final settlement of the estate, but did not prevent her from enjoying the property given to her by her husband. Why then, was her support charged upon the property given to the appellants, rather than upon her own ?
We are aware, that courts of probate have long exercised the power of making allowances for the support of a family, when necessary, during the settlement of the estate; and that power has been confirmed by statute. But the power of taking the property of an heir or devisees, and appropriating it for the benefit of others, without the consent of the owner, ought to be cautiously exercised, and never carried beyond the necessary requirements of the case.
The true rule upon this subject is this. Wherever the widow and family of a deceased person have adequate provision made for their support, either by will, or in any other manner, they are not entitled to a support out of the shares [419]*419of others, who are not members of the family. We speak not, however, of provisions and other articles procured by the deceased, in his life-time, to be consumed in the support of his family.
The course pursued by the judge of probate in this case, was clearly contrary to the manifest intent of the testator. He intended she should have the property given her in the will; and the other persons named therein, the residue. But by this proceeding, she is supported at the expense of these appellants, for a period of some four years, and in the meantime, the legacy given her in the will is suffered to accumulate upon interest.
Free access — add to your briefcase to read the full text and ask questions with AI
Waite, J.
Numerous questions have'been presented - upon the record, in this case, for our consideration. But as the case comes before us, by motion in error, if any one of the reasons assigned for the reversal of the judgment of the superior court, is deemed sufficient, that judgment must be reversed, whatever the court may think as to the validity of the other reasons.
We shall therefore consider only some of the principal questions involved. One of them is, whether the whole expense of establishing the will, before the superior court, upon an appeal taken by one of the heirs at law, was justly chargeable upon the property devised to the residuary devisees, and the order of the court directing their lands to be sold, for that purpose, was properly made.
Where an appeal is taken, by an heir at law, from a decree approving a will, the controversy is not against the executors, but against the devisees and legatees, who may claim the estate under the will. They should be made the defendants, and brought before the court. And it is their business, if they think proper, to assume the burden of establishing the validity of the will.
The law, upon this subject, was correctly laid down, nearly half a century ago, by the superior court, in the case of Curtis and wife v. Northrop, exr., reported in Swift’s Evidence, 355. The authority of that case lias been sanctioned, by a long and uniform practice, and the approval of this court. Comstock v. Hadlyme Society, 8 Conn. R. 254.
The court, in that case, held, that “ in all cases, where the appeal respects rights and claims contested between heirs, devisees and legatees, the expense shall be defrayed by the parties in interest; and for this purpose, they all ought to be notified, and made parties on the record.”
In this case, the executors, as such, had no interest in the controversy ; as legatees, they had an interest. Barber was entitled to a legacy under the will of two hundred dollars. A legacy of three thousand dollars was given to the widow, besides furniture and other articles, to a considerable amount, and the use of a portion of the real estate. Other persons also were interested, and all were made defendants in that suit. And yet they are made to contribute nothing towards the expense of establishing their claims under the will; and [417]*417the whole expense is thrown upon the property devised to the appellants, because they were residuary Revíseos,
It is true, these other persons were not bound to appear and defend, unless they thought proper so to do. The appellants might have assumed the whole burden oí the defence, and all the expenses attending it. But does it appear, that they have done so ? It is insisted, on the part of the defendant, that it does, from the renort of the auditors.
But we do not w tuN-1 'eg 'hm i ¡, I • ’ mis, that the defence v. a • i i d 1 p - t 1 ‘ c liters, with the -; that the expens". ,>v¡ i ’ - • • ’’ 1 1 ’ by and properly cbm •< d ae *h ■ ■ 1 . 1 V‘rc found, that the a¡»p< I'.mi, j M‘' 1 ,. ! 1, '■ h '■ i > >*e expenses; or that du,,r laiics ,.,ig..t b„ tdu o, Jer of the court, for that purpose.
The auditors were appointed by the parties, to take the account, and find the facts in reference thereto. So far as the amount of the charges, and their reasonableness, is concerned, perhaps the finding of the auditors is conclusive. But the report sets forth no facts justifying the inference, that the charges were properly made against (lie estate. The mere fact that the appellants assented to the course pursued bv the executors, in the defence, in our opinion, is not sufficient for that purpose. To justify the course pursued by the executrix, it is necessary for her to go further, and show that the appellants authorized her to pursue that course. This a majority of the court think she has failed to do.
It is said, however, that it is the duty of the executors to cause the will to be proved; and consequently, they have a right to charge the necessary expenses attending that proceeding. We do not mean to be understood, as saying, that where there is no controversy respecting the validity of a will, the executors may not cause it to be proved, at the expense of the estate. But they have no right, as in this case, to carry on an expensive litigation, and reimburse themselves out of the portions given to the residuary devisees.
The defendants in the suit brought by the heir, stood much [418]*418in the same situation, as if they , had been defendants in a ■suit in chancery, having different interests in the subject matter of the suit. All, or any of them, might appear, and defend, either jointly or separately ; and any agreement as to the manner of defraying the necessary expenses, might be enforced in the one case, as in the other.
We are therefore of opinion, that the superior court, in this respect, erred, in affirming the decree of the court of probate approving of the administration account.
2. Again, it appears from the record, that the executrix charged in her account, which was allowed by the court, the sum of 430 dollars, 69 cents, for her support during the settlement of the estate ; and the sum of 480 dollars more, for interest upon the pecuniary legacy given her, in the will. We do not see upon what ground this proceeding can be vindicated; — nor why the appellants should be charged with the payment of both these sums.
The testator, in his will, made such provision for his wife, as he deemed adequate and proper, and such as, it seems, she was willing to accept. Shortly after his death, she caused that will to be proved, and went into possession of all that was given her under the will, both real and personal, and in that possession, it does not appear, that she was ever disturbed. The appeal, indeed, delayed the final settlement of the estate, but did not prevent her from enjoying the property given to her by her husband. Why then, was her support charged upon the property given to the appellants, rather than upon her own ?
We are aware, that courts of probate have long exercised the power of making allowances for the support of a family, when necessary, during the settlement of the estate; and that power has been confirmed by statute. But the power of taking the property of an heir or devisees, and appropriating it for the benefit of others, without the consent of the owner, ought to be cautiously exercised, and never carried beyond the necessary requirements of the case.
The true rule upon this subject is this. Wherever the widow and family of a deceased person have adequate provision made for their support, either by will, or in any other manner, they are not entitled to a support out of the shares [419]*419of others, who are not members of the family. We speak not, however, of provisions and other articles procured by the deceased, in his life-time, to be consumed in the support of his family.
The course pursued by the judge of probate in this case, was clearly contrary to the manifest intent of the testator. He intended she should have the property given her in the will; and the other persons named therein, the residue. But by this proceeding, she is supported at the expense of these appellants, for a period of some four years, and in the meantime, the legacy given her in the will is suffered to accumulate upon interest.
x4nd we discover in the case, no sufficient reason for not charging her support upon the interest which she was charging upon her legacy.
Other questions have been discussed in the argument. But those already considered are sufficient to show that the judgment of the superior court, in affirming the decree of the court of probate in the allowance of the administration account, is erroneous and ought to be reversed.
Although it would be competent for the superior court to affirm that decree in part, and set it aside for the residue, where the two parts are clearly distinct; yet the manner in which this case comes before us, is such, that we cannot advise such a course. The auditors have found, that there have been errors and mistakes made in adjusting the administration account ; and the balancing of these errors would be attended with considerable difficulty, besides the correction of the errors already considered.
With respect to the order for the sale of real estate, as it was made principally, if not entirely, for the purpose of raising funds to defray expenses not properly chargeable against the estate, and for which the court had no power to order the sale of real estate, that decree, in our opinion, ought also to be set aside, and of coarse, the decree accepting the return of sale.
An important question has been presented, respecting the necessity of giving notice where real estate is sold under an order of court, at private sale. It seems, that in this case, the administration account was presented to the court and allowed; an order for the sale of real estate made; the [420]*420estate sold; and a return of that sale made and accepted-all in the same clay. Of course, no notice was, or could be, given, that the property would be sold, except to those who might happen to be present.
Such a mode of proceeding affords great opportunity for fraud and collusion between the vendor and purchaser, and clearly ought not to be sanctioned, unless fully authorized by statute. It is said, that the practice of judges of probate has not been entirely uniform upon this subject. Many of them have required notice to bo given, in all cases, where real estate is sold under an order of court. In other instances, orders of sale have been made, without requiring such notice. But as this case is decided upon other grounds, we waive the further consideration of the question.
Another question has also been raised; and that is, whether the legacies in this will, are a charge upon the real estate. The cases to be found in our reports seem to favour the claim of the appellants. Swift v. Edson, 5 Conn. R. 531. Gridley and wife v. Andrews, 8 Conn. R. 1.
On the other hand, it has been holden, in several recent cases, in the English reports, that a bequest of legacies, followed by a gift of all the residue of the testator’s real and personal estate, operates to charge the entire estate with the legacies. But Jarman, in his treatise on Wills, in commenting upon those cases, observes, that it is worthy of remark, that in neither of them, was there any specific devise of real estate to 'which the term residue might be referred. 2 Jarman, 533.
But a further consideration of this question is also waived; because, in the final settlement of the estate, a resort to a sale of real estate may not be necessary.
Judgment of the superior court must be reversed.
The other Judges were of the same opinion.
Judgment reversed.
t) Ellsworth, J, came to a different conclusion on this matter of fact; but did not otherwise dissent from the views of his brethren.