Conn.) HARTFORD TRUST CO. v. WOLCOTT (85 Conn. 134) HARTFORD TRUST CO. v. WOLCOTT et al. (Supreme Court of Errors of Connecticut. Jan. 5, 1912.) 1057 against William W. Wolcott and others to 1. WILLS (§ 511*)-CONSTRUCTION-BENEFI- the advice of the Supreme Court. By "legal representatives" in a bequest in trust to pay the income to H., nephew of testatrix, and, at his death, the principal to such of his legal representatives "as are related to me by blood," is meant his heirs at law. [Ed. Note.-For other cases, see Wills, Cent. Dig. 1107; Dec. Dig. § 511.* For other definitions, see Words and Phrases, vol. 5, pp. 4070-4079; vol. 8, p. 7704.] 2. WILLS (8 634*)-CONSTRUCTION-NATURE OF ESTATE-CONTINGENT REMAINDER. The remainder attempted to be given to the heirs of H. by a will giving money in trust to pay the income to H. during his life, and, at his death, the principal to such of his heirs. "as are related to me by blood," is a contingent one, as it could not be known till his death whether he would leave heirs of such description, and, if so, who and how many they would be. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*] 3. PERPETUITIES (§ 4*)-BEQUEST TO CHILDREN OF PERSONS NOT IN BEING. The attempted gift of the remainder by a will giving money in trust to pay the income to H., testatrix's nephew, during his life, and, at his death, the principal to "such of his heirs as are related to me by blood," was void under the statute of perpetuities in force when the will took effect, it being possible such heirs might be children of persons not in being at testatrix's death, though it turned out they were his brothers living when she died; it not being reasonable to construe such designation of remaindermen as referring to the time of testatrix's death, rather than that of testator, as this would bar children of H., if any were born to him after death of testatrix, and the use of the present tense "are" being appropriate, though referring to the time of H.'s death. [Ed. Note. For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. § 4.*] 4. PERPETUITIES ( 4*)-GIFT TO A CLASS. A bequest over after the death of the first taker to "such of his heirs as are related to me by blood" not being to a class existing at the death of testatrix, it being impossible to say, till death of the first taker, who will be in the class, is not within the rule that where a gift is to a class and some of them are competent to take, and others are not competent, under the statute of perpetuities, those eligible can take the entire gift, to the exclusion of the others. [Ed. Note.-For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. § 4.*] John T. Charles M. Joslyn, for plaintiff. Edward L. THAYER, J. The testatrix died in September, 1884, leaving a will, of which the fifth clause, out of which arise all the questions upon which our advice is sought, reads as follows: "Fifth. I give and bequeath to the children of my sister Emily Wolcott, the sum of thirty thousand dollars ($30,000.) the same to be equally divided among those living at the time of my decease or paid to the survivor of them, except that I give such portion as would under this bequest go to Horace Wolcott to my executor and executrix in trust to pay the income thereof to him semi annually during his life and at his death to pay and deliver the principal of said trust fund to such of his legal representatives as are related to me by blood." Horace Wolcott and the defendants William W. and Abiathar R. Wolcott were the three children of the sister Emily Wolcott. They were in life at the time the will was made, and survived the testatrix. Horace died in September, 1910, without issue. His two brothers are his sole heirs at law. By a residuary clause of the will Zayde E. Bancroft, a sister-in-law of the testatrix, and Dr. Henry P. Stearns, who was not a relative of the testatrix, were made her residuary legatees and devisees, and the executor and executrix of the will. The questions for determination are: (1) "Is the trust over under the fifth clause of the will valid, and are the said William W. Wolcott and Abiathar R. Wolcott entitled to receive the principal of said trust fund?" (2) In the event that the trust over is void, does the trust fund go to the administrator de bonis non of the testatrix as intestate estate or as testate estate, to the representatives of the residuary devisees and legatees named in the 5. WILLS (§ 858*)-VOID LEGACY-RESIDUARY will? BEQUESTS. A bequest over being void under the statute of perpetuities, the fund goes to the residuary legatees, and does not become intestate property, a contrary intention not being shown by the fact that the gift over is to such heirs of the first taker as are of the blood of testatrix, and that the residuary legatees are not such persons. [Ed. Note. For other cases, see Wills, Cent. Dig. § 2173-2183; Dec. Dig. § 858.*] [1] All parties to this proceeding agree that by the term "legal representatives" the testatrix intended the heirs at law of Horace Wolcott, and not his executors or administrators, and it is apparent that this must be so, for she directs that the trust fund shall be paid to such of them as are related to her by blood. She would not have used this language had she been referring to executors or administrators. [2, 3] The remainder thus attempted to be given to the heirs of Horace Wolcott was a Case Reserved from Superior Court, Hartford County; William H. Williams, Judge. Suit by the Hartford Trust Company *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 81 A.-67 contingent one. It could not vest until his death. Until that event, it could not be known whether he would leave heirs who were related to the testatrix by blood; and, if he left such heirs, their names and number, and consequently the number and size of the shares to be distributed, could only be determined at his death. It was possible, manifestly, that his heirs might be children of persons not in being at the date of the testatrix's death. This possibility rendered the attempted gift of this remainder void as within the prohibition of the statute of perpetuities in force when the will took effect. Wheeler v. Fellowes, 52 Conn. 238, 244; Tingier v. Chamberlin, 71 Conn. 466, 469, 42 Atl. 718. The fact that, as things turned out, the heirs of Horace were his brothers, relatives by blood of the testatrix, and persons who were in being at the time of her decease, cannot affect the construction of the will. Bartlett v. Sears, 81 Conn. 34, 41, 70 Atl. 33. It is claimed that the statute of perpetuities is inapplicable to this case, because, as claimed, the term "his legal representatives" is to be taken as referring to those who at the death of the testatrix rather than at the death of Horace would be his next of kin of the blood of the testatrix. This is not the natural construction of the language used. Such a construction might carry the fund to collateral heirs, although there were children of Horace born after the death of the testatrix. There is nothing in the facts appearing in the record to call for or warrant such a construction. On the contrary, it seems clear that the intention of the testatrix was that the fund should after the death of Horace go to his descendants should there be any; if not, then to collaterals of the blood of the testatrix. Cases are cited in support of the construction contended for. The construction given to similar language in those cases was based upon the facts peculiar to them, and have little or no weight as precedents in other cases, unless the facts are substantially identical. Attention has been called to the fact that in the expression "to such of his legal representatives as are related to me by blood" the testatrix used the present tense of the verb. The expression was appropriate whether the reference was to the date of her own death or to that of her nephew. To whichever date reference is made the intention expressed would be that of his then existing heirs the fund shall be paid to such "as are related to me by blood." [4] It is also said that this is a gift to a class, and that, when some of the members of the class are competent to take and others not, those eligible can take the entire gift to the exclusion of those members who fall within the prohibition of the statute. That rule can only apply to cases where there is the fact that in the present case the members of the class attempted to be created were not in existence at the death of the testator; that they can only be ascertained after the death of Horace, when the time comes for distribution; and that, as already pointed out, it is possible that the persons then falling within the class may be those falling within the prohibition of the statute which makes the attempted gift void. The individuals who are to constitute the class being uncertain until the death of the life tenant, and it being possible that the individuals may then be persons coming within the prohibition of the statute, there was class. Anthony v. Anthony, 55 Conn. 256, 259, 11 Atl. 45. [5] The gift over being void, the remaining question is whether the trust fund becomes intestate estate of the testatrix or goes to her residuary legatees. The general rule is that the residuary legatee under a general residuary clause takes all the personal property not otherwise disposed of by the will, unless it clearly appears from the will that this was not the testatrix's intention. Lapsed legacies and void legacies are included in what "is not otherwise disposed of." Bristol v. Bristol, 53 Conn. 242, 255, 5 Atl. 687; Bartlett v. Sears, supra, 81 Conn. 47, 70 Atl. 33. It will be presumed ordinarily from the fact that the testator has attempted to make a particular legacy that it was not his primary intention that the property so attempted to be disposed of would become a part of his residuary estate. But this fact does not show that in case the legacy should lapse or be void or fail for any reason the testator did not intend that the property thus attempted to be disposed of should then go to the residuary legatee. It would be easy, if he intended otherwise, to provide for the contingency of the lapsing or other failure of the legacy. The fact that the will contains a general residuary clause shows an intent to avoid partial intestacy. Warner v. Willard, 54 Conn. 470, 472, 9 Atl. 136. And such intent is always to be presumed where there is a general residuary clause, unless it appears from the will that he did not so intend. In the present case there is nothing to show that the testatrix intended intestacy as to this trust fund in case the gift over should fail. Our attention has not been called to anything in the will which is claimed to show such intent except the fact that the gift over was to go to persons of the blood of the testatrix, and that the residuary legatees are not such persons. But it cannot be inferred from these facts that she intended intestacy as to this fund if the gift over to the heirs of her nephew who were of her blood should fail. her blood should fail. It might have failed had there been at his death a failure of such heirs. It is quite as likely that she intended the fund in that event, or in fact Conn.) COMSTOCK v. TOWN OF WATERFORD tees under the will, as that through intestacy it should go to her own heirs whom she had excluded by the ineffective provision. The case falls within the general rule. 1059 "real estate," and not mere chattel interest in land. [Ed. Note.-For other cases, see Taxation, Dec. Dig. & 80.*] Appeal from Superior Court, New London County; Ralph Wheeler, Judge. The superior court is advised that the gift over to the heirs of Horace Wolcott was void, and that the trust fund should be paid Action by James E. Comstock against the to the administrators of Zayde E. Bancroft Town of Waterford to set aside proceedings and the executors of Henry P. Stearns, the by the board of relief adding property to residuary legatees, one-half to each. No plaintiff's tax list. From a judgment discosts in favor of either party will be taxed affirming the action of the board, the town in this court. The other Judges concurred. appeals. Judgment set aside, and cause remanded, with directions to enter judgment affirming the board's action. (85 Conn. 6) COMSTOCK v. TOWN OF WATERFORD. (Supreme Court of Errors of Connecticut. Dec. 19, 1911.) 1. TAXATION (§ 482*) - ASSESSMENT - ADDI TION-NOTICE-WAIVER. While a property owner by the express provisions of Pub. Acts 1905, c. 154, was entitled to a written notice of addition made to his tax list, failure to give him notice was waived by his appeal to the board of relief from the action of the assessor in making the addition. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 854-857; Dec. Dig. § 482.*] 2. TAXATION (§ 65*)-ASSESSMENT-PERSONALTY OR REALTY-CONTRACTS. Private contracts between a lessor of land and a lessee as to whether certain cottages erected on the land should be a part of the realty would not bind the town in assessing the property as to whether the cottages were realty or personalty. [Ed. Note. For other cases, see Taxation, Dec. Dig. § 65.*] 3. TAXATION (§ 65*)-ASSESSMENT-REALTYWHAT IS. Gen. St. 1902, § 2299, provides that any interest in real estate listed for taxation shall be set by the assessors in the list of the party in whose name the title to such interest stands on the land records of the town. Plaintiff owned certain town lots which he leased to nonresident summer visitors in the town for a term of years, and they erected permanent cottages thereon for use as summer cottages. Held, that the cottages were properly listed as real estate against the owners of the lots, there being nothing to show that the lessor's interest in the cottages would be terminated by their removal by the lessees, even though they retained such right. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 150; Dec. Dig. § 65.*] 4. MUNICIPAL CORPORATIONS (§ 966*)-TAXATION-REALTY-SITUS. Every municipality is entitled to assess all of the real estate lying within its limits. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 2045-2061; Dec. Dig. § 966.*] Christopher L. Avery and Charles A. Gallup, for appellant. Abel P. Tanner and John J. Lawless, for appellee. RORABACK, J. The appeal presents two questions: First, whether the assessment in question was void for want of notice to the taxpayer; second, whether the property assessed was for the purpose of taxation real estate. It appears that the plaintiff, who was a resident of the town of Waterford, filed with the assessors of the town a tax list showing that he was the owner of the land upon which four cottages then stood, but did not include these cottages in the list. Subsequent to the filing of this list the board of assessors of Waterford added these cottages to the plaintiff's tax list. The plaintiff was not notified of this addition, but learned of whom he was duly heard. it, and appealed to the board of relief before was entitled to written notice of the addition [1] The plaintiff by Pub. Acts 1905, c. 154, made to his list. This defect was waived by his appeal to the board of relief. Quinnebaug Reservoir Co. v. Union, 73 Conn. 294, 299, 47 Atl. 328. On October 1, 1909, the plaintiff was the owner and had record title to a tract of land situated in the town of Waterford. years prior thereto, there had been standing On that day, and for several on this land four summer cottages, described as the "Arthur Gager cottage," the "Allen Richards cottage," the "Grace Bitgood cottage," and the "Club House." The land on which each cottage stood was leased by the plaintiff to the owner of the building by a written lease for a period of years. leases all expressed that the land was to be used for summer cottages. The leases of the "Arthur Gager cottage" and the "Allen Richards cottage" were recorded in the land rec ords of the town of Waterford. The other two leases were not recorded. The Gager 5. TAXATION (§ 80*)-REAL ESTATE-INTERcottage was built in the year 1903, at a cost EST IN REALTY. Gen. St. 1902, § 2299, providing that any of about $700. The Richards cottage was interest in real estate listed for taxation shall built in the winter of 1905 and 1906, at a be set by the assessors in the list of the party cost of about $600. The Bitgood cottage was in whose name the title to such interest stands on the land records of the town, requires the built in the year 1903, at a cost of about listing of freehold interest properly termed $125. The Club House was built in 1905, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes sever them. They possess all the physical attributes of real estate. These owners have the right to occupy and use this property the same as though it were real estate. Apparently section 2299 of the General Statutes was intended to apply to a case like the one now under consideration. All of the owners of these cottages are nonresidents of the town of Waterford. at a cost of about $700. Each of the houses was built where it now stands of lumber and other materials brought to the place and there assembled and nailed together. They were supported upon chestnut posts set into the ground; the sills of the buildings being nailed to the tops of the posts. They were not built in sections, and were not of the description called "portable houses." None of the described buildings have ever been moved from the place where it was built. Photographs of these houses exhibited in this court indicated that their outward appearance was that of permanent summer cot-known that in most instances persons owntages. [2] Evidence was admitted and certain facts found by the trial court based on this evidence as to the mutual understanding and agreement of the parties as to these leases. The purpose of this evidence and the finding of the court thereon was to show that it was not the intention of the parties that these cottages should become a part of the plaintiff's real estate. For the purposes of this case, this evidence and these facts were immaterial. The private contracts and arrangements between the lessor and his lessees as to these buildings were not binding upon the town of Waterford or its assessors. Milligan v. Drury, 130 Mass. 428, 430. The question here presented is not whether under the strict rules of the common law these cottages should as between the parties be termed as real estate or personal property. [3] Our present inquiry is whether these buildings for the purposes of taxation come within the provisions of section 2299 of the General Statutes of 1902, which provides that: "Any interest in real estate listed for taxation shall be set by the assessors in the list of the party in whose name the title to such interest stands on the land records of the town in which such real estate is situated." These cottages have been permanently located upon the plaintiff's land in the town of Waterford for several years. While it is true that the lessor's interest in this real estate may be terminated, yet there is nothing to indicate that any one of the parties to these arrangements contemplate such a termination. They are attached to the land in the manner adapted for permanent structures, and as such they have been so treated and used. They are not a part of the freehold for all purposes only because of a right which may never be exercised to [4] The rule is universal that every municipal jurisdiction is entitled to the benefit of all the real estate lying within its borders for the purposes of taxation. It is well ing this kind of property are nonresidents, many of them residing beyond the boundary lines of the state. It is a general rule that personal property liable to taxation follows the domicile of the owner. General Statutes, § 2323. If, as the plaintiff now contends, such buildings are to be treated as personal property, it would often happen that there would be no way in which their owners could be compelled to contribute to the municipality where the buildings are located for the promotion of projects which have for their object the benefit of all. The language of the statute under consideration unmistakably indicates that it was intended to treat this kind of property as real estate for the purposes of taxation. It is concisely stated in the opening language of section 2299 as follows: "Any interest in real estate listed for taxation." This court in discussing this statute stated that it is not a provision for the listing or taxation of personal property. It means that any taxable interest in real estate shall be set in the list in the name of the owner of record of such interest. Such an interest, unless otherwise provided by statute, is generally not taxable separately from the freehold, although there may be exceptional cases where an interest in real estate conveyed by an instrument in the form of a lease for a term of years may for certain purposes be regarded as a fee. [5] The interest in real estate which section 2299 requires to be listed in the name of the record owner is not a mere chattel interest in land, but a freehold interest properly termed real estate. Sanford's Appeal, 75 Conn. 590, 592, 54 Atl. 739. There is error, and the judgment is set aside and the cause remanded, with direction to enter a judgment affirming the action of the board of relief. In this opinion the other judges concurred. Conn.) (85 Conn. 140) ILLUSTRATED POSTAL CARD & NOVELTY CO. v. HOLT 1061 under no obligations to sell the cards at retail ILLUSTRATED POSTAL CARD & NOVEL- or to the retail trade, but was entitled to noti TY CO. v. HOLT. (Supreme Court of Errors of Connecticut. Jan. 5, 1912.) 1. CONTRACTS (§§ 2, 144, 325*) - VALIDITY, CONSTRUCTION, AND REMEDIES-WHAT LAW GOVERNS. The law of the place of a contract determines its validity and construction, unless the place of performance is elsewhere, or the contract has been made with reference to another law; but the form of remedy to be pursued and the judicial proceedings thereunder are prescribed and regulated by the lex fori. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 2, 41, 145, 724-727, 1558–1562; Dec. Dig. §§ 2, 144, 325.*] 2. SALES (§ 340*)-REMEDIES OF SELLERACTION FOR DAMAGES OR PRICE. fy the buyer that it held the cards as the buyer's bailee, and, after the buyer's refusal to accept the same, sue for the price, as authorized by Sales Act (Pub. Acts 1907, c. 212) § 63, 3. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 927-942; Dec. Dig. § 340.*] 6. SALES (§ 161*)-TITLE-DELIVERY TO CAR RIER. Where a seller delivered goods to a carrier for shipment for the buyer and gave notice to the latter that the carrier held the goods subject to the buyer's order, the property in the goods passed to the buyer, notwithstanding the shipment was made after notice to the seller of the buyer's intended cancellation of the contract and refusal to accept the goods. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 377-380; Dec. Dig. § 161.*] 7. SALES (8 345*)-REMEDIES OF SELLER. for a quantity of post cards to be manufacWhere defendant gave plaintiff an order Prior to the passage of the sales act (Pub. Acts 1907, c. 212), a seller was entitled to maintain an action against a buyer for damages for the buyer's breach of his contract to purchase goods to be manufactured, the meas-tured, and later attempted to cancel a large ure of the damages being the difference between the contract price and the market value of the goods, in case there was a market value, and, if the goods had no market or were worthless, the actual damages recovered might be the entire value of the goods, but no action for the price, under such circumstances, was maintainable. [Ed. Note. For other cases, see Sales, Cent. Dig. 88 927-942; Dec. Dig. § 340.*] 3. SALES (§ 340*)-REMEDIES OF SELLER ACTION FOR PRICE. Sales Act (Pub. Acts 1907, c. 212) § 63, 3, provides that although the property in goods has not passed to the buyer at the time of his breach of contract, if the goods cannot readily be resold for a reasonable price, and if the provisions of section 64, 4, are not applicable, the seller may offer to deliver to the buyer, and, if refused, may notify him that the goods are thereafter held by the seller as the buyer's bailee, after which the seller may treat the goods as the buyer's and maintain an action for the price. Held, that the elements of an action, under such section, were breach of a contract to purchase; that the title in the goods at the time of the breach had not passed; that the goods could not be sold for a reasonable price; that the seller had offered to deliver to the buyer and been refused; and that the buyer had been notified that the seller thereafter held the goods as the buyer's bailee. [Ed. Note. For other cases, see Sales, Cent. Dig. §§ 927-942; Dec. Dig. § 340.*] 4. SALES (§ 208*)-PASSING TITLE-SEGRE GATION. Where at the time of a buyer's breach of contract to purchase the goods had been manufactured but had not been segregated or marked for the buyer nor delivered to a carrier for transportation to him, the title had not passed, in the absence of a provision in the contract to the contrary. [Ed. Note.-For other cases, see Sales, Cent. Dig. 561; Dec. Dig. § 208.*] 5. SALES (§ 340*)-REMEDIES OF SELLER ACTION FOR PRICE. Where a wholesale dealer in post cards breached his contract with a manufacturer to purchase certain cards, and it appeared that the breach occurred at a time when the cards could not be sold for a reasonable price to jobbers and wholesalers, the manufacturer was part of the order for Christmas cards of a particular description, the seller was under no resell the goods at a time it knew it could not obligation to separate the order or attempt to obtain a reasonable price therefor. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 956-961; Dec. Dig. § 345.*] 8. SALES (§ 161*) CONTRACT BREACH-STORAGE OF GOODS. BUYER'S On a buyer's breach of a contract to purchase goods, the storage thereof with an agent of the seller or their delivery to a carrier for the buyer does not add to the seller's responsibility as the buyer's bailee. [Ed. Note. For other cases, see Sales, Cent. Dig. §§ 377-380; Dec. Dig. § 161.*] Appeal from Court of Common Pleas, New Haven County; Isaac Wolfe, Judge. Action by the Illustrated Postal Card & Novelty Company against Clarence D. Holt. Judgment for plaintiff, and defendant appeals. Affirmed. Ward Church and Harrison Hewitt, for appellant. James D. Hart, for appellee. WHEELER, J. The plaintiff is a manufacturer of post cards in New York City. The defendant is a wholesale dealer in post cards in New Haven. A salesman of plaintiff procured from defendant in New Haven a verbal order for Christmas post cards, subject to change. Subsequently, the defendant called at plaintiff's place of business in New York, and, after examining plaintiff's catalogue, gave it a written order for 100,000 Christmas post cards No. 438, for the price of $275, and for other Christmas cards, the price for the whole order amounting to $321, the same to be shipped, by what method did not appear, on August 1st, and paid for December 1, 1910. The plaintiff in its business manufactured post cards of this character on special order and did not keep them in stock. On July 16, 1910, defendant wrote plaintiff that he was obliged to cancel the order for the 100,000 post cards. After secur *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |