The opinion of the court was delivered by: Matthews, J.
B. F. Thurston and L. C. Ashley, for appellants.
Chas. E. Perkins and Alvan P. Hyde, for appellees.
This is a bill in equity to recover certain shares of the capital stock of Colt's Patent Fire-arms Manufacturing Company, a corporation of Connecticut at Hartford, in the hands of the executors of Samuel Colt, deceased, as a part of his residuary estate, under his will. The complainants are children of the late Christopher Colt, a brother of the testator, and Mrs. Theodora G. Colt, their mother, who is assignee of the interest of a deceased son. The defendants are executors of the last will of Samuel Colt, and trustees, and others, legatees claiming interests under the same. The testator, Samuel Colt, made his last will and testament, June 6, 1856, and thereafter two codicils, one on January 12, 1858, the other, February 2, 1859. He died at his domicile, Hartford, Connecticut, in 1862, and his will and codicils were duly admitted to probate and record. A large part of his estate was comprised in 9,996 shares of the capital stock of the Colt's Patent Arms Manufacturing Company. By his will he bequeathed 1,000 shares of this stock to his widow for life, with remainder to his after-born children, and to each of the latter also 500 shares; 100 shares to Samuel Caldwell Colt, a son of a brother, 'when he shall have arrived at the age of twenty-one years;' to the children of his brother Christopher 100 shares each, 'as they shall arrive at the age of twenty-one years,' respectively. He gave other legacies of stock to other named persons, and provided means for the foundation and establishment of a school or institution for the instruction and education of young men in practical mechanics and engineering. It contained also the following:
'To my brother, James B. Colt, now of said city of Hartford, I give and bequeath the use and improvement during his life of five hundred shares of the stock of said Colt's Patent Fire-arms Manufacturing Company, and, after the death of my said brother, to his issue lawfully begotten, as an absolute estate. This bequest is on condition that the said James B. Colt shall waive and relinquish all claims and demands, actual or pretended, which he may have against me or against said Colt's Patent Fire-arms Manufacturing Company.
'I also give and bequeath to my executors and their successors in said office five hundred shares of the stock of said Colt's Patent Fire-arms Manufacturing Company, 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, so far as the same may be necessary for that purpose, until the youngest surviving of said issue shall have reached the age of twenty-one years, when said stock and all accumulations thereof, if any, shall go to said issue, in equal proportions, as an absolute estate.'
He gave also a legacy in stock to each of his executors.
The residuary clause is as follows: 'All the rest and residue of my estate, of every kind and description, not herein disposed of, I give, bequeath, and devise as follows: All the remaining stock of said Colt's Patent Fire-arms Manufacturing Company, of which I shall die possessed, shall be divided among the several persons and parties to whom I have hereinbefore given legacies of stock, in the ratio and proportion in which said legacies of stock are hereinbefore given. All my other residuary estate shall be divided among 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, 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, and that my other residuary estate shall be shared by the same persons to whom I have given gross pecuniary legacies, and in precisely the same ratable proportions.'
The first codicil contains the following: 'I also revoke and cancel, for reasons growing out of his late unbrotherly conduct towards me, the legacy of five hundred shares of the stock of Colt's Patent Fire-arms Manufacturing Company, given in the aforesaid will to James B. Colt for life, remainder to his children; and, in lieu thereof, I give and bequeath said five hundred shares of stock to the trustees named in said will, for founding a school for practical mechanics and engineers, subject to the uses and trusts created in said will for that purpose.'
By the second codicil, all the provisions previously made for founding and carrying on the school for mechanics were canceled. It also contains the following: 'I hereby give and bequeath to each of the children of James B. Colt a legacy of one hundred dollars, and I hereby cancel and wholly revoke any and all other legacies or devises by me heretofore at any time made to or for the use and benefit of said children, or any of them. I give to the eldest son of my brother, Christopher Colt, a legacy of one hundred dollars and no more and all legacies heretofore made in his favor are canceled and revoked; and I hereby give, bequeath, and devise to the other children of my said brother (said eldest son not being included herein) the property, to-wit, five hundred shares of the stock 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 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 bequest 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 subject to the same limitations as are provided in said original will in the bequest to the children of said James B. Colt. And I hereby confirm and establish said original will as altered, changed, and modified by this and the previous codicil, as and for my last will and testament.'
Elizabeth H. Colt, the testator's widow, Richard D. Hubbard, and R. W. H. Jarvis were appointed and qualified as executors of the will.
After the death of the testator, his brother, James B. Colt, claimed that the cancellation by the first codicil of the specific legacy in the will to him for life, with remainder to his issue, of 500 shares of the stock, did not have the effect of canceling his interest under the residuary clause, on the ground that that clause should be construed as an independent disposition of the remaining stock, to the very persons, only, described as those to whom specific legacies of stock had been thereinbefore, that is, in the will, given, as if they had been again named; and not as a dependent legacy to those who, under the codicils as well as the will, became ultimately entitled as legatees to specific legacies of stock, although these legacies might be of the same stock which, in the will itself, had been originally given to others, and afterwards canceled. This claim, it will be observed, consisted of two parts: First, of a right in himself to share in the residuum; and, second, to exclude from it those to whom, by the codicils alone, and not by the will, specific legacies were given. This branch of the claim necessarily antagonized the right of the children of Christopher Colt to participate in the residuum by reason of the legacy given to them in the second codicil.
To assert his interest in the residuary estate, and to determine its amount, and the several interests of all entitled to share in it, James B. Colt, in July, 1864, filed his bill in equity in the superior court of Connecticut for Hartford county. To that bill parties defendant, among others, were made as follows: Mrs. Elizabeth Hart Colt, as claiming an interest under the will, and also as executrix, and as administratrix of Henrietta Colt, deceased, and as guardian of Caldwell Hart Colt, a minor; Richard D. Hubbard, as claiming an interest under the will, and as executor; Richard W. H. Jarvis, as claiming an interest under the will, and as executor; Isabella De Wolf Colt, Le Baron B. Colt, Ed ward D. Colt, and Samuel Pomeroy Colt,–all the last three being minors; Theodore De Wolf Colt, their guardian; and were duly served with process. A demurrer to this petition was filed on beha f of all the defendants, and was reserved for the advice of the supreme court of errors, whose decision thereon is reported as Colt v. Colt, 32 Conn. 422. From that report, the case seems to have been fully argued and thoroughly considered. The demurrer was overruled. The court decided that the bequest of a share of the residuary stock to James B. Colt had not been revoked; that the language of the revocation was plainly limited to the first 500 shares; and that the second legacy to him of a share in the residuary stock must be regarded as an independent legacy, the reference to him as a person to whom the previous legacy had been given being merely designatio personoe, not having the effect of attaching together the two bequests, as necessarily connected in the same ownership, and that the latter was, consequently, not affected by the revocation. The cause thereupon came on again in the superior court, the respondents having been ordered to answer over, and where, it is recited in its record, 'the parties again appear and are at issue upon a general denial of the allegations in the plaintiffs' bill,' and thereupon the court made a finding of facts. Among other findings, after referring to the will and codicils of the testator, it is stated that 'the parties in this cause are interested in the estate of the said Samuel, in manner and form and to the extent and proportion in said will and codicils expressed, set forth, and contained.' It is also stated that there are children of Christopher Colt, a brother of the testator, 'to-wit, the eldest son of the said Christopher, named in said will, and the said Isabella De Wolf Colt, and three children of the said Christopher, then minors under the age of twenty-one years, to-wit, Le Baron B. Colt, Edward D. W. Colt, and Samuel Pomeroy Colt, of which minor children the said Theodora De Wolf Colt was and is the legal guardian,–all of whom are residents in Hartford,–but the said Edward D. W. Colt has, since the last term of this court, arrived at his majority.' It had been previously recited that when the parties appeared the minors 'were duly represented by their guardians.' The superior court reserved, for the advice of the supreme court of errors, the following questions arising upon the record of the case:
'(1) Whether the interest taken in the residuum by James B. Colt is a life estate or an estate in fee. (2) Whether said Colt shall receive interest upon the dividends made on his residuary stock; and if so, from what time. (3) Have the legacies which the children of the testator, who deceased in his lifetime, 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 said R. W. H. Jarvis and H. C. Deming both take a legacy of stock under said will, or only one of them, or neither of them? (6) What is the amount of the residuum of the 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 ...