Shey's Appeal From Probate

Supreme Court of Connecticut

Shey's Appeal From Probate

46 A. 832, 73 Conn. 122, 1900 Conn. LEXIS 17

CourtSupreme Court of Connecticut

DecidedJuly 13, 1900

StatusPublished

Cited by7 cases

This text of 46 A. 832 (Shey's Appeal From Probate) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shey's Appeal From Probate, 46 A. 832, 73 Conn. 122, 1900 Conn. LEXIS 17 (Colo. 1900).

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Opinion

Baldwin, J.

The testatrix made her “ executors hereinafter named” trustees for her infant great-granddaughter, and then named two executors, one (the appellant) being the father of this child. By a codicil she provided for the death of the child under age and without issue, giving in that event 1800 to the appellant. In a later codicil this legacy was revoked, and also the appointment of the appellant as an executor, a direction being added that the other whom she had named for that office should be the sole executor.

A will and its codicils, if there are any, are the expression of a single testamentary act. The different papers are to be read as constituting an entirety, which is not complete until the latest of them is given appropriate and—in case of conflict—controlling effect.

The term “hereinafter named, ” which the testatrix used to describe her executors, referred to those finally named by operative words. Colt v. Colt, 33 Conn. 270, 280. But one was thus finally named, and he was expressly made sole executor. ' The functions conferred upon the executors by the first article of the will plainly went with the office. The use of the same words of description, “ hereinafter named, ” in the third article, indicates prima facie that the trust which it creates *125 was also attached to the office, and this presumption is strengthened by the fact that the revocation in the second codicil, of the appellant’s appointment as executor, is accompanied by a revocation of the legacy in his favor. It was, therefore, properly adjudged by the Court of Probate that the appointment of Mr. Shey as trustee had been revoked, and so that he should not be allowed to qualify as such.

To retain his rights as a trustee, if he had any, it was necessary to appeal from this decree; but he had none, and therefore it should have been affirmed.

There is error; the judgment of the Superior Court is reversed and the decree of the Court of Probate is affirmed.

In this opinion the other judges concurred.

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Baldwin, J.

The testatrix made her “ executors hereinafter named” trustees for her infant great-granddaughter, and then named two executors, one (the appellant) being the father of this child. By a codicil she provided for the death of the child under age and without issue, giving in that event 1800 to the appellant. In a later codicil this legacy was revoked, and also the appointment of the appellant as an executor, a direction being added that the other whom she had named for that office should be the sole executor.

A will and its codicils, if there are any, are the expression of a single testamentary act. The different papers are to be read as constituting an entirety, which is not complete until the latest of them is given appropriate and—in case of conflict—controlling effect.

The term “hereinafter named, ” which the testatrix used to describe her executors, referred to those finally named by operative words. Colt v. Colt, 33 Conn. 270, 280. But one was thus finally named, and he was expressly made sole executor. ' The functions conferred upon the executors by the first article of the will plainly went with the office. The use of the same words of description, “ hereinafter named, ” in the third article, indicates prima facie that the trust which it creates *125 was also attached to the office, and this presumption is strengthened by the fact that the revocation in the second codicil, of the appellant’s appointment as executor, is accompanied by a revocation of the legacy in his favor. It was, therefore, properly adjudged by the Court of Probate that the appointment of Mr. Shey as trustee had been revoked, and so that he should not be allowed to qualify as such.

To retain his rights as a trustee, if he had any, it was necessary to appeal from this decree; but he had none, and therefore it should have been affirmed.

There is error; the judgment of the Superior Court is reversed and the decree of the Court of Probate is affirmed.

In this opinion the other judges concurred.

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Bluebook (online)

46 A. 832, 73 Conn. 122, 1900 Conn. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheys-appeal-from-probate-conn-1900.

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