199 Conn. 569 | Conn. | 1986
The defendant, Marie Mayfield, has appealed from a judgment rendered by the Appellate Court in favor of the plaintiff, Wilma Dei Cas.
The opinion of the Appellate Court describes both the underlying facts and the procedural history of this case. Id., 106-107. Briefly, William Shaw executed a will in 1938 and died in 1944. The relevant language of his will is as follows: “Second: I give devise and bequeath all of the property of which I die seized be the same real, personal, or mixed, or where-so-ever situated, to my beloved wife, Mary B. Shaw, for her own proper use and benefit, forever. I do this knowing that my said wife will make proper provisions for any child or children then living.
“Third: At the death of my said wife, I direct all of the property then remaining shall be divided among my children, then surviving, share and share alike.
“Fourth: In the event that my wife should die at or near the time of my decease and before my children are of legal age and able to care for themselves, I hereby appoint my brother, Richard Shaw, as their guardian. Should this happen I appoint said Richard Shaw as the executor of my last will and testament.”
Mary B. Shaw died on January 15, 1981, leaving a last will and testament in which she gave the plaintiff the right to purchase from her estate, at a price greatly below market value, real estate on Ponus Ridge Road in New Canaan, the title to which she had acquired by the will of her husband William Shaw. If William Shaw’s will gave Mary B. Shaw only a life estate, the disposition to the plaintiff in her will would be void. If, on the other hand, Mary B. Shaw had acquired a fee simple absolute under the terms of William Shaw’s will, the disposition to the plaintiff would be valid.
The trial court held that Mary B. Shaw inherited only a life estate and therefore all the property that remained unexpended at her death passed in equal shares to William Shaw’s daughters, the plaintiff and the defendant, under the terms of his will. The plaintiff appealed to the Appellate Court. The Appellate Court found error and held that, under the will of William Shaw, Mary B. Shaw had acquired a fee simple absolute in the realty. Dei Cas v. Mayfield, supra, 111. The defendant sought and this court granted certification. “In an appeal, after certification from the judgment of the Appellate Court, ‘the focus of our review is not the actions of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo.’ State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985).” White Oak Corporation v.
“The cardinal rule to be followed in construing a will is to find and effectuate the intent of the testator. In seeking that intent, the court looks first to the will itself and examines the words and language used in the light of the circumstances under which the will was written. Chase National Bank v. Guthrie, 139 Conn. 178, 182, 90 A.2d 643 [1952]; First National Bank & Trust Co. v. Parish of St. Thomas’ Church, 141 Conn. 489, 497, 107 A.2d 246 [1954]. To ascertain the intent of a particular provision, the will must be read as a whole to discover whether it discloses an underlying intent which should be considered in finding the meaning to be accorded to the particular language under construction. Bankers Trust Co. v. Pearson, 140 Conn. 332, 345, 99 A.2d 224 [1953].” Hartford National Bank & Trust Co. v. Devitt, 145 Conn. 384, 388, 143 A.2d 441 (1958). The apparent inconsistencies of paragraphs “Second” and “Third,” therefore, must be harmonized if possible in a way that will preserve the intent of the testator. We believe that the construction given the will by the Appellate Court, which held that Mary B. Shaw received an estate which was subject to defeasance only in the event that she predeceased the testator and is therefore an absolute estate in fee simple, preserves William Shaw’s intent.
We disagree, however, with the position of the Appellate Court that “the language of William Shaw’s will does not involve a clause which contains an express and positive devise in fee . . . .” Dei Cas v. Mayfield, supra, 110. We conclude, rather, that the clause contained in the second paragraph of the will which reads,
An accepted canon of construction is “that a clear bequest of an absolute estate is not to be cut down to a lesser estate by subsequent provisions unless those subsequent provisions are at least equally clear. See Stanton v. Stanton, 140 Conn. 504, 511, 101 A.2d 789 [1953].” Pond v. Porter, 141 Conn. 56, 65, 104 A.2d 228, cert. denied sub nom. Glover v. Officers & Minis
In Hull v. Hull, supra, one paragraph of the will used the words “give, devise and bequeath to my daughters . . . their heirs and assigns forever.” Id., 482. Another paragraph apparently limited the gift by devising the same property to others “[a]t the decease” of the daughters. Id. This court concluded that the second clause applied only in the event of the deaths of the daughters during the lifetime of the testatrix. “ ‘There is [a] rule of construction which has been followed many times by this court, and which is decisive of this case. It is, that when in a will an estate in fee is followed
When these rules are applied to the present case, they favor the interpretation that “the property then remaining” at the death of Mary B. Shaw is referring to her death during the life of the testator. Paragraph “Third,” therefore does not clearly create a life estate. The Appellate Court then was correct in its conclusion that there was no clearly expressed intent in paragraph “Third” which would reduce the estate granted in paragraph “Second” to an estate less than a fee simple absolute. We therefore conclude that, under the will of William Shaw, Mary B. Shaw received a fee simple absolute in the real estate in question.
We affirm the decision of the Appellate Court.
In this opinion the other judges concurred.
The plaintiff Wilma Dei Cas instituted suit on her own behalf as well as in her capacity as executrix of the estate of her mother. The state tax
In view of our holding, i.e., that paragraph “Second” is a clear bequest of a fee simple and paragraph “Third” is ambiguous, we do not feel that any analysis of paragraph “Fourth” is necessary or helpful. The Appellate Court reasoned that: “Article fourth of the will makes it clear that the testator contemplated that his wife might die before he did, and reinforces the interpretation of article third to mean that the children would take only if their mother did not survive the testator.” Dei Cas v. Mayfield, 3 Conn. App. 106, 111, 485 A.2d 584 (1985).