14 A.2d 743 | Conn. | 1940
Willie O. Burr died November 27, 1921, leaving a will in which he made various bequests to certain beneficiaries he named and many charitable organizations; he gave to his wife his home, with the personal property in connection with it; and devised and bequeathed the residue of his estate to her for her life. The will continued as follows: "After the death of my wife, or in case she be not living at the time this will takes effect, then I direct said rest and residue to be divided into four equal parts. One of said fourths I direct shall be divided equally among the legatees who are named in Paragraph 2 of this will or the survivors of them," the remaining three being given in trust for certain charitable organizations. In Paragraph 2 of the will he made bequests of $5000 each to nine persons whom he named *103 describing them as "relatives of myself or my wife." Three of them were his own first cousins; two were sons of his first cousins; one was the widow of a first cousin; and two were nephews and one a niece of his wife. He left surviving many other cousins not mentioned in his will. After his death, but before that of his wife, four of the legatees named in Paragraph 2 died. The Court of Probate made an order for the distribution of the fourth part of the residue in question, which directed that it be divided into nine parts, one part to go to each of the legatees named who survived the widow and one part to the estate of each of the four legatees named who died before her. From that order the five legatees named who survived appealed to the Superior Court. The case has been reserved, and the primary question submitted to us for our determination is whether the share in the residue given to a legatee who died before the widow is to be distributed to his estate, or whether the whole is to be divided among the five who survived her.
The question at issue resolves itself into an inquiry whether the word "survivors" has reference to the time of the death of Mr. Burr, or to the time of the death of Mrs. Burr. In White v. Smith,
In Brown v. Potter,
Starting, then, with the proposition that unless the will indicates a contrary intent the matter of survivorship is related to the time when the residue is to be divided, rather than to that of the death of the testator, we turn to the will to see if there are definite indications in it of the intent of the testator. In the first place, it is to be noted that in the situation before us to apply the usual rule of interpretation would not involve attributing to the testator an intent to disinherit the descendants of his own blood, because none of the legatees named were his descendants. Nor is there any substantial reason for construing the words of survivorship as relating to the testator's death on the ground that thereby partial intestacy might be avoided; when the testator died, his widow was seventy-two years old, and it would be extremely unlikely that all of the nine legatees named in the second paragraph would die before her. The provision that the one-fourth part of the residue in question should be divided "equally" among the legatees or the survivors of them, applies as well to a division among those who might survive the life use of the widow as it would were the provision to be construed to apply to those who survived at the testator's own death. On the other hand, the will before us is rather unusual in that nowhere in it does the testator make any provision for the heirs, issue, or legal representatives of the beneficiaries he names. He selected from among the "relatives of myself or my wife" nine persons to be the recipients of his bounty, leaving out others just as nearly related to him as were any of the legatees. The will bears all the earmarks of an intention to *107 make gifts simply to the particular persons whom he names as legatees, and to hold that in the provision in question the survivors who can take are to be determined at the death of his widow is to do no more than carry out his apparent intent to benefit them as individuals, without regard to any descendants they might leave, should they die before his estate is divided.
No purpose would be served by answering the specific questions propounded in the reservation. We advise the Superior Court that only those of the nine legatees named in Paragraph 2 of the will who were surviving at the death of the testator's widow are entitled to share in the distribution of the fourth part of the residue of the estate in question, and that the order of distribution made by the Court of Probate was in error.
No costs will be taxed in this court to any party.
In this opinion the other judges concurred.