Austin v. Bristol

40 Conn. 120 | Conn. | 1873

Seymour, J.

The question in this case arises upon the construction of the following clause in Mr. Hughes’s will:

“ Upon the decease of my said wife I give all my said estate to such of my children as may he living at the time of her decease, and to the issue of those who may have deceased, and to their heirs and assigns forever; to he equally divided between them; the issue of such deceased children to take per stirpes and not per capita.”

The will is dated in 1841, at which time all Mr. Hughes’s children, five in number, were living. Ho died in 1864, leaving a widow, to whom all his property was given for her life, and leaving four of his children (who ultimately survived the widow), and leaving one grandchild, Louisa Hughes Austin, the daughter and only child of his daughter Louisa, who had died prior to his death. This grandchild died February 18th, 1870, a minor and intestate, having her domicil in New Haven. The widow died in 1872.

The administrator of the grandchild, as plaintiff in this amicable suit, claims under the will one-fifth part of the personal estate of Mr. Hughes. The claim is that upon the death of Mr. Hughes the grandchild took a vested interest in one-fifth- part of his-estate, subject indeed to be divested in a certain event provided for in another part 'of the will, to be more particularly noticed hereafter; which interest might also be increased in the event of the death without issue of one or more of her uncles or aunts.

The defendant on the other hand insists that the gift to the testator’s children is clearly contingent’upon their surviving their mother, the gift being only to such of them as may be living at her death; and that a similar contingency by reasonable construction applies to the grandchild, to wit, that in order to take under the will she must be living at- the death of .her .grandmother; and that the clause above recited in the will should be construed as it would be had. the words “if then living” been inserted after the word “ issue.”

It is conceded to be probable that had the testator’s attention been called to the subject he would have made the gift to the grandchild dependent upon the same contingency of being alive at the termination of the life estate on which the gift to his children is made to depend, and this probability has been deemed so strong that in the earlier cases the issue under wills like this were adjudged not to take unless living at the death of the tenant for life. But clauses like that under consideration frequently occur in wills and have become the subjects of much discussion. The earlier cases have been in the English courts carefully reviewed, and it is now firmly settled in England, that under the language used in this will the grandchild takes a vested estate.

It is true that in regard to the construction of wills former cases, unless ad idem, are of small account; but in respect to clauses of’ frequent occurrence in wills it is important thf»t there should be uniformity of construction, -and we do n®t feel at liberty to adopt a rule as applicable to this case different' from that which has received the sanction of the highest courts in Great Britain, unless we can see strong reasons for ■such departure.

It is clear upon well-settled - rules of construction that the words of this will in thoir natural import create a vested interest in the grandchild immediately on her grandfather’s death. At his death she was the issue and sole issue of one of his children who had deceased. As such, she was to take per stirpes, that is, to take the share which her mother would have taken had she lived till the death of the tenant for life, namely, one-fifth of the estate. No contingency is expressed in the will regarding this gift. The. object of the testator’s bounty is alive at the testator’s death and capable of immediately taking. There is no uncertainty as to the person, or as to the gift. The time of taking possession is indeed postponed till the grandmother’s death, but the words of the gift are in the present tense, “I give.” The words connected with these words of gift, to wit, “upon the decease of my said wife,” are uniformly construed both in England and in this country to relate to the time of taking effect in possession and not to the time of taking effect in interest. Harvey v. McLauglin, 1 Price Exch. R., 254; Throop v. Williams, 5 Conn. R., 98; Fay v. Rogers, 2 Gray R., 175; Harrison v. Foreman, 5 Vesey, 209.

The whole question then resolves itself into this, whether the fact that the testator’s children take only a contingent estate depending on their outliving their mother, clearly indicates that the gift to the issue of such of 1ns children as might die during the mother’s life, is by implication also contingent upon the like event of their being alive at the death of the tenant for life.

Conflicting views and decisions have taken place in England on this subject and refined distinctions have been attempted. They are readily found in our text books, and there is no occasion to examine the. controversy in detail. The late case of Martin v. Holgate, in the House of Lords, seems to have settled the question in England. Law Reps. 1 House of Lords Cas., 175. The bequest in that case, in every essential feature which affects the matter before us, is identical with the bequests in Mr. Hughes’s will. The testator bequeathed his residuary estate to his wife for life, and then to such of his nephews and nieces as should be living at her death, and then adds, “ but if any or either of them should then be dead, leaving issue, such issue shall be entitled to their father’s share, but in equal proportions.” A nephew died during the life of the widow, leaving a daughter who died an infant during the widow’s life. The same question there arose which arises here, namely, whether this infant daughter took a vested interest in the residuary estate, and it was held that she did. Several eminent judges gave opinions at length, all concurring in the judgment. The grounds of the decision are very clearly stated by Ex-Chancellor Lord Westbury. He says: “ According to the plain effect and meaning of this bequest, unless that meaning be altered by the implication of additional words, the issue living at the death of a nephew or niece who may pre-decease the tenant for life, take an. immediate vested interest in that share which would have been taken by the parent if he or she had been living at the time of distribution. The interest of the issue is vested and immediate, although the amount of the share is uncertain until the death of the tenant for life.”

We give another' extract from Lord Westbury’s opinion. “The implication contended for by the respondent is not warranted by the form of the gift, which is not elliptical, nor referential, nor substitutional; nor is the implication necessary to avoid absurd or contradictory consequences. It is by no means irrational to suppose that the testator intended to make the interest of the- orphan issue vested and immediate, although he made the interest of the parent contingent on surviving the tenant for life. A judge is not justified in departing from the plain meaning of words which admit of a rational construction, for the purpose of giving effect to an assumed intention which appears to him more rational or more consistent with the rest of the will.”

In Martin v. Holgate the bequest to the issue of deceased nephews and nieces is indeed in a sentence distinct from that in which the gift is- made to the nephews and nieces themselves ; so far differing from the case under our considera-' tion, where the contingent gift to the testator’s children and^ the gift to the issue of deceased children are in different clauses of the same sentence: So too there is a slight difference of phraseology in the two wills, the contingency “if any or either of them should then be dead leaving issue,” being expressed in the will before the House of Lords and not expressed in Mr. Hughes’s will.

In the case In re Orton's trust, reported in Law Reps. 3 Eq. Cas., 374, the form of the gift is more closely like that in the case before us. The entire gift to children and the issue of deceased children is in one and the same sentence and the phraseology of the two wills nearly identical. In Orton's trust the money to be raised by the sale of property on the death of the testator’s two sons was thus bequeathed : “ equally among such of my five daughters as shall be living at the death of the survivor of my sons, and to the children, grandchildren and issue of such of my said daughters as shall then happen to be dead, &c.”

The case was regarded by the court as clearly falling within the rule established by Martin v. Holgate, and the doctrine of that case was carried to an extent which we have no occasion here to follow.

These two English cases seem to settle the law in England so fully that we forbear the citation of the numerous conflicting cases which preceded them. Several American cases were cited by counsel, but none of them seem to touch the precise point on which this turns.

The counsel, for the respondent rely upon another part of the will as having an important bearing on the question under consideration. A clause occurs in Mr. Hughes’s will in substance as follows : “ If none of my children or their lawful issue shall be living at the time of the decease of my said wife, I then give all my estate to William L. Wight^ &c. The effect of this clause is such that, upon the contingency therein expressed happening, Louisa Hughes Austin and her representatives would lose their interest in the estate of Mr. Hughes. The interest vested in her, and on her death in her representatives, would be divested upon the happening of the contingency, and this we apprehend is the whole and only effect of the clause. The clause is entirely consistent with an interest rested, but subject to be divested by the contingency provided for. It is a familiar rule that if there are clear words of gift giving a vested interest to parties, the court will not permit that absolute gift to be defeated unless it is perfectly clear that the very case has happened in which it is declared that the interest shall not arise. The rule is thus stated in Harrison v. Foreman, 5 Vesey, 209. The Master of the Bolls there says : “ There is a vested interest, and the contingency xipoii which it is to be divested has never happened. The vested interest therefore remains as if that contingency had never been annexed to it.”

In conclusion then, it appears that the weight of authority is in favor of the plaintiff’s claim, and we also yield, though with some hesitation, to the force of the reasons by which that claim is supported. We therefore advise the Superior Court that the plaintiff, as administrator of Louisa Hughes Austin, is entitled to a share of the personal estate of the deceased Enos B. M. Hughes.

In this opinion the other judges concurred.