The plaintiff's claim to a vested title to, or interest in, the property described in the complaint and known as No. 780 Chapel Street, is the foundation of the claim for relief presented by him in the complaint. In like manner the claim of the defendants, the Hill children, to a vested title to, or interest in, the property known as No. 782 Chapel Street, underlies the claim for redress presented by the defendants Hill in their cross-complaint. If the facts set up by them respectively disclose that these claims are unwarranted, the action of the court below in sustaining the demurrers to the complaint and cross-complaint was not erroneous. Roberts v. Merwin, ante, p. 347,68 A. 377.
The source of whatsoever title or interest the plaintiff or the Hill children may have is Sarah L. Maltby, who at her death owned both properties in question; the character of the estate or interest claimed is the same in each case, to wit, the fee, subject to an outstanding life estate for the lives of their respective mothers; and the facts and circumstances affecting the two claims are in all respects the same. We may, therefore, for convenience sake, confine our inquiry to the plaintiff's claim of title to No. 780.
If he has any title to or interest in that property it must be by force of either (1) Mrs. Maltby's will and the *Page 369 distribution made, considered as one under the will, (2) the distribution made, considered as one independent of the will and as of intestate estate in so far as it purported to distribute what the will had been ineffective to devise, or (3) of certain facts and circumstances, of which the distribution is one, all together creating, as in Ward v. Ives,75 Conn. 598, 54 A. 730, a property status which cannot now be disturbed.
It is not now contended that the statute against perpetuities, which was in force at Mrs. Maltby's death, admits of a claim that the plaintiff took anything under her will, or under any distribution made pursuant to its terms.Gerard v. Ives, 78 Conn. 485, 489, 62 A. 607.
In the case cited we held that the distribution of Mrs. Maltby's estate was one under her will. It is now, however, earnestly urged upon us that in so far as that instrument undertook to deal with what, by reason of the statute against perpetuities, was not effectively devised, it should be regarded as one of intestate estate, and that when so viewed its effect, since it was never appealed from, must now be to conclude the parties. An acceptance of the stated premise of this proposition, however, would not avail the plaintiff. The portion of the distribution thus carved out to form a distribution of intestate estate are two, each setting out a remainder over, after a life estate in one quarter of a defined portion of the decedent's estate, to the heirs of the life tenant. The properties in which these remainders were thus attempted to be created included No. 780 Chapel Street, of which the plaintiff's mother was made the life tenant, and an undivided one half of No. 782, of which Mrs. Hill became the life tenant. Both life tenants were of course alive, and for that matter they have survived to this day. We are thus confronted with the proposition that distributions of intestate estate, made before the repeal of the statute against perpetuities, in which estate was set out to the heirs of living persons, were good and valid. It is urged that such was the case, since the statute in terms limited its application to estates given by *Page 370 deed or will. The difficulties which the proposition has to encounter are, however, not alone those of the statute, but others quite apart from it. A distribution of intestate estate is a part of the machinery of the law whereby those who under the law are entitled to share in the estate, and the particular quantum and portion each is to receive as representing his or her share, are ascertained, determined and set out. The object of the distribution is the division of the estate to those who were entitled to it upon the death of the decedent. Ward v. Ives, 75 Conn. 598, 601,54 A. 730. It operates in presenti, is governed by conditions existing at the testator's death, and deals only with definite, ascertainable and ascertained persons. The definite ascertainment by the Court of Probate of the persons entitled to share in it is a condition precedent to a distribution of intestate estate, and the law recognizes none which is not made, pursuant to such ascertainment, to persons in existence at the death of the decedent, capable of taking and sufficiently described, save, of course, as the death of one who would otherwise be entitled to share permits the substitution for him of his estate.
No language of this distribution, descriptive of any person to whom property or estate was set out, designates the plaintiff as one. His claim rests solely upon the employment in the distribution of the phrase "her heirs," referable to his mother, as descriptive of the distributees of a remainder after her death. But he was not her heir.Nemo est haeres viventis. At the time Mrs. Maltby died, and also when the distribution was made, he may have entertained an expectation, increasing as the years have passed, of outliving her and becoming her heir, but he did not then occupy, and never has occupied, any other position than that of expectancy. But it is said that "her heirs" was a term used as descriptive of a class, of which he was at the time one, ready to take and capable of taking. The only possible classes of which he would surely be a member, were that of the children of Mrs. Beecher generally, her children living at Mrs. Maltby's death, and Mrs. *Page 371 Beecher's heirs determined as of the time of Mrs. Maltby's decease. Of all these classes he would have been the sole member. The reasons why a construction creating either of them cannot be justified are sufficiently indicated inGerard v. Ives, 78 Conn. 485, 62 A. 607.
These suggestions have an additional interest as bearing upon the construction to be given to the distribution in so far as it touches intestate estate, and upon the determination of its character in those portions of it as being, on the one hand, one under the will, or on the other, one in intestacy. A construction which would impute to the Court of Probate and distributors grave irregularity is not one to be lightly accepted, and yet the one claimed for this distribution is one which sets out all of the intestate estate to two classes of undetermined and undeterminable persons — to classes which it is said should open to admit persons not in existence. Under this construction there is neither the ascertainment of distributees, nor that of the specific distributive shares set out to each, and there is no distribution to persons in being at the death of the testatrix and capable of taking.
The distribution, therefore, as and of itself, was not sufficient to give to the plaintiff any part of Mrs. Maltby's estate, and the absence of an appeal could not alone give it added effect.
The claim that the plaintiff, failing in his endeavor to establish a vested title or interest in No. 780 through the sole operation of the so-called distribution in intestacy, can at least succeed in doing so by bringing to its aid the facts and circumstances surrounding and succeeding it, had a careful consideration in the light of all the facts now presented in the case of Gerard v. Ives, 78 Conn. 485,62 A. 607, and with an adverse result. It is, however, again urgently pressed upon us. The reasons then assigned for the conclusion reached were so recently stated that they need not be here repeated. They were not, however, by any means exhaustive, and were not intended to be. In view of the insistence of counsel in the correctness of their *Page 372 contentions, we are prompted to make a single additional general observation, which serves to emphasize the correctness of the former conclusion.
There is nothing in the facts and circumstances appealed to, which are claimed to be, or could be, creative of any rights or condition other than such as the distribution unsuccessfully attempted to create. The only consequence claimed for them is the giving of legal effectiveness to the distribution in so far as it of itself had none, and causing it in those portions to speak with the binding force of a valid distribution in intestacy. The distribution, and that alone, is the thing which it is sought to make operative by having breathed into it the breath of legal life. The statements of the briefs of counsel representing the interests of the plaintiff are emphatic to this effect, as where it is said that there is no attempt to vary the return of the distributors, but that it is on the contrary insisted that the distribution should stand. This being so, it follows from the form and phraseology in which the distribution appears that the plaintiff has taken upon himself a double burden, to wit: first, that of giving legal efficiency to the distribution of the remainders, and second, that of identifying himself with it as the designated beneficiary of the remainder in No. 780.
In respect to the establishment of the terms of the distribution as binding upon the parties, reliance is placed upon certain agreements which it is said that the facts and circumstances involve or imply, and certain estoppels which it is said result therefrom. In so far as agreements are concerned, it is clear that parties could not by any manner of agreement or combination of agreements succeed in securing property to the heirs of living persons, in evasion of the statute against perpetuities. As far as estoppels, which are the plaintiff's main reliance, are concerned, there is the incidental difficulty in this case that the plaintiff has not been induced by the conduct of any other person, to do or forbear doing anything to furnish the foundation of an estoppel; as also the major difficulty, quite apart *Page 373 from the statute, that the creation of estoppels involves the existence of persons competent to act, to be influenced to action or nonaction, and to be benefited or harmed thereby. If, however, it be said, as it is in effect in the present case, and be conceded, that one person, as for example, Mrs. Beecher, may assert an estoppel for the benefit of another, then that other must certainly be a definite ascertainable person, or the benefit cannot accrue or be bestowed.
So it is that the plaintiff, in order to succeed in making the distribution effective in his favor, by the assertion for himself, or in obtaining from his mother the benefit of any agreement or agreements, estoppel or estoppels arising out of the state of facts here, must needs, the statute aside, identify himself as "the heirs" of his mother in the distribution as written. He must make it appear that he is the very man to whom, in legal effect, the distribution of the remainder in No. 780 was made, the very man for whose benefit any agreements as to that remainder were entered into, the very man to whose benefit any estoppel accrued. He must, in other words, succeed in writing himself into the distribution as made, as the person legally intended as his mother's heirs, and in substituting himself in the place of the parties so described in all that transpired. Until he shall have accomplished this task he cannot have acquired a locus standi, and every argument he may undertake to advance in his behalf, whatever form it may take, will be doomed to inevitable failure. The task, as we have already seen, is for him an impossible one. It is impossible, first of all, because it involves an escape from the prohibitions of the statute as they have been interpreted, which, however unfortunate they may have been, were too sweeping to afford him a means of escape which would not meet other insurmountable obstacles. In Ward v. Ives, 75 Conn. 598,54 A. 730, Mr. Stevens had no such condition to encounter, and therein is found a vital difference between that case and the present, the importance of which the plaintiff and the cross-complainants alike appear not to appreciate. *Page 374
Certain of the defendants demurred to the cross-complaint of the defendants Hill, upon the ground that the controversy therein sought to be presented for determination was not germane to the matters presented by the complaint. We are not unappreciative of the force of the claim thus made; but as the same considerations which lead to the dismissal of the complaint disclose that the prayers of the cross-complaint must be denied, and the parties are before the court, we have thought it best to apply the inevitable conclusion to the final disposition of the matters involved in the cross-complaint, without stopping to inquire whether there were not also technical grounds for its dismissal.
There is no error.
In this opinion the other judges concurred.