55 Conn. 319 | Conn. | 1887
Lead Opinion
The ninth article of the will of the late John M. Davies is as follows: “It is my will, and I hereby direct, that four fifths of the share of any and every of my sons shall be paid to him as soon as it can be conveniently done after my decease; and as to the remaining one fifth, it is my will and I hereby direct that the same be invested in bonds and mortgages, or if it shall be thought best by my executrix and executors in real estate, and kept invested for his use during his life, and that the interest and income therefrom shall be paid to Mm during his life, and that on Ms death the same shall be distributed or go to his personal representatives who would be entitled to his personal estate according to law.”
The testator left three sons surviving him at the.time of his death, who were all of age when the will was made. The share of each in his estate was $166,666, of which the one fifth in question in tins case is $33,333.
One of the sons, Cornelius C. Davies, has since died, leaving a will, and a widow, Grace Welch Davies, one of the defendants, but no issue. By the will he gave all his prop.erty, both real and personal, to his widow, and constituted her the executrix of his will.
1st. Who are the personal representatives of Cornelius C. Davies intended by the testator in the ninth article of his will ?
2d. To whom is it the duty of the plaintiff to deliver the estate now in their hands, under the trust of said ninth article ?—to the defendants who are the heirs at law of said John M. Davies and the next of kin of said Cornelius C. Davies, or to the defendant Grace Welch Davies, who is the executrix and sole devisee and legatee under the will of said Cornelius; or to the defendant Grace W. Davies as the widow, and the other defendants as the legal representatives of said Cornelius, in proportions according to the statute of distributions of this state relating to intestate estate ?
The ultimate gift of the property in question was made to the “personal representatives” of Cornelius C. Davies, “ who would be entitled to his personal estate according to law.” We think this description was not intended to describe parties who might represent Cornelius in an official capacity as executors or administrators; neither was it intended for those who might be his devisees or legatees; but was intended to desiginate his next of kin, who would be entitled to his personal estate by right of consanguinity.
We think it clear that the testator never intended by this description that those should enjoy his bounty Avho might happen to be Cornelius’s executors or administrators, to the exclusion of his children should he leave any surviving Mm. The improbability of such a gift to those who might not only be strangers to the blood of the testator, but strangers to him personally,—strangers who might come within the description by the accident of appointment by Cornelius as executors of his will or by the probate court as administrators of his estate, would be so great that it would require unequivocal language to establish it. _As said the Lord Chancellor in Palin v. Hills, 1 Mylne & K., 470,—“If by personal or legal representatives, or executors or adminis
SucH a gift would have put it in the power of Cornelius to make a disposition of the property, in effect, to whomsoever he would, for he could select whatever party or parties he might feel disposed to be his executor or executors, and he might make the selection in order that others might have the property, to the exclusion of his children.
All this he might do when no power of appointment has been given to him directly in the will, and no such power has been given unless intentionally given in the indirect manner suggested. This seems preposterous; and especially so when we consider that the testator granted the power of appointment in the sixth and tenth articles of his will to his widow in one case and to his daughters in the other, and the grants are made in clear and direct terms. The conclusion is irresistible, that if the testator had intended that the sons should have this power, the grant would have been made in equally explicit and direct language.
Again, the cases are numerous, both in England and in this country, where the words “ personal or legal representatives,” when used by a testator to describe the objects of his bounty, have been construed to mean natural representatives and not legal representatives—representatives in the sense of next of kin, and not representatives in an official or fiduciary capacity.
In the ,old and leading eases of Bridge v. Abbott, 3 Bro. C. C., 224, and Cotton v. Cotton, 2 Beav., 67, the gift was to certain devisees, and in case of the death of either, then to his or her “legal representatives.” And in the latter case one of the devisees had died leaving a will. But the master of the rolls held that the next of kin in both cases
In this country the English cases, giving to “ representatives ” the significance of “ next of kin,” have been generally followed. 2 Redfield on Wills, 78. Such has been particularly the case in the state of New York, where the will in question was executed, and in reference to whose laws, presumably, it was made.
The case of Drake v. Pell, 3 Edw. Ch., 270, is a leading one in that state. The bequest was of personal property in trust for the benefit of nine children of the testator, with this provision, “ and in case any of my said children shall die after me under the age of twenty-one years, and leaving a child or children him or her surviving, then the share, portion or interest of the child so dying shall go to the heirs, devisees or legal representatives of the child so dying.” One of the sons died a minor and intestate, leaving a widow and two children; and the question was whether the son’s adminstrator took as his legal representative, or his children, as his next of kin. In deciding the question the court say:—“ And with respect to the words ‘ legal representatives,’ if the property transmitted be personal estate,, the persons desiginated by and answering to this description are those who, by the statute of distributions, are known as the next of kin, and not the executors or administrators of the deceased child. The testator doubtless meant those who should take beneficially to themselves as owners, and not in a mere official or representative capacity in the right of a deceased child.” The two grandchildren of the testator were declared to be-the parties described to take under the will, and tlie mother of the children to be entitled to no interest in the property.
The case of Tillman v. Davis, 95 N. York, 17, fully and clearly shows that the law of New York excludes the widow and husband from the class of “ next of kin ” in personal property and from “heirs” in real estate. In that cuse the testatrix gave property to her executors in trust for the use of her husband during life, and then directed its division
The word “ representatives ” has also been regarded as meaning “next of kin ” in Brokaw v. Hudson’s Executors, 27 N. Jer. Eq., 135. In this case the gift was made to the testator’s sister “ or to her representatives.” The court say :—: “In a gift of personal property, where the substitutes of the primary legatee are described by the word ‘representatives,’ those will take who have the right to represent the primary legatee as next of kin under the statute of distributions, and not his executors or administrators.”
But we think, aside from the adjudged cases on the subject, that the language of the description of the parties who are to take the remainder of the property in question, clearly excludes both the executors and administrators of Cornelius C. Davies and his legatee and widow. The language is:—“ Shall be distributed and go to the personal representatives of Cornelius C. Davies, who would be entitled to his personal estate according to law.” The last words, we think, make it clear that the testator meant by “ personal representatives ” those who would be entitled to the personal estate of Cornelius by right of consanguinity; that is, who would be entitled by natural right—by relationship—by being next of kin.
But it is said that the title to the one fifth share of Cornelius C. Davies was vested in him as much as the title to the four fifths, and consequently that he had the right to dispose of it by will, as he did to his wife.
"We therefore, in answer to the questions propounded by the executors for our advice, say that the personal representatives of Cornelius C. Davies are his next of kin; and that the property in question should be delivered to the defendants who are the heirs at law of John M. Davies and the next of kin of Cornelius C. Davies.
In this opinion Pardee and Loomis, Js., concurred.
Dissenting Opinion
(dissenting.) The testator disposed of the residue of his property as follows : “ Seventh. It is my will and I hereby direct that all the rest, residue and remainder of my estate, real and personal, and effects whatsoever, shall be divided in equal portions among my children who shall survive me, and the children of such of them as shall die leaving children, if any, so that each of my children who survive me shall have an equal portion of my estate if all shall survive me, or if any shall have died before my decease without leaving a child or children ; and so that if any of my children shall have died before my decease leaving a child or children, the child or children of each and every one who .shall have died before my decease, shall take the share which the father or mother would have taken under this my will, if such father or mother had survived me.”
Clearly the leading thought and intent in this section is
It will be observed that the gift to each and every one of his children is in precisely the same language. There is no distinction. If one takes a fee, all take a fee, so far as this section is concerned. That will be admitted. The court cannot construe the same language as meaning one thing in respect to one child, and something different in respect to another. If, therefore, such a construction is to prevail, it must be on account of some other portion of the will which requires it.
The ninth section is as follows : “ It is my will, and I hereby direct, that four fifths of the share of any and every of my sons shall be paid to him as soon as it can be conveniently done after my decease. And as to the remaining one fifth, it is my will, and I hereby direct, that the same be invested in bonds and mortgages, or, if it shall be thought best by my executrix and executors, in real estate, and kept invested for his use during his life, and that the interest and income therefrom shall be paid to him during his life, and that on his death the same shall be distributed or go to his personal representatives who would be entitled to his personal estate according to law.”
The tenth section makes a similar provision for the shares of the daughters, except that the proportions are reversed, one fifth being payable presently to each daughter, and four fifths invested for her use during life, and at her decease, and not before, “the said four fifths of her share shall go to her child or children, if she shall leave any surviving her, share and share alike if more than one, and so.that the children of any deceased child shall receive the share that the parent would have been entitled to if living; and if not, that is, if she shall leave no child nor descendant, shall be
It will be found that the portion given to each daughter in the seventh section is spoken of as “her share” in his estate no .less than seven times in the tenth section. She has the beneficial use of the whole share during her life, the power of disposing of it by will is expressly given her, and, in case she makes no will, it is to be disposed of as her personal estate.
Under such a will I think it will be admitted that each daughter, in effect, takes a fee in the whole portion given to her by the seventh section.
I fail to discover enough in the difference between the ninth and tenth sections to convince me that the testator intended to deal less favorably with the sons than with the daughters. That difference may be accounted for mainly, if not entirely, by his extreme anxiety that each daughter, when married, should take her share as her sole and separate estate and have the power of disposing of it to the “ absolute exclusion” of any right in the husband. In case she fails to dispose of it, the provision that it shall be distributed as her personal estate is significant; he thereby recognizes not only that the property vests in the daughter, but also that it is hers, and not her husband’s.
No part of the will indicates any want of confidence in
The suggestion that he intended to place one fifth of each son’s share beyond the hazards of business is hardly in harmony with other parts of the will. It may be so, but he has not said so, and no such reason for withholding payment of the one fifth is apparent either on the face of the will or in the attending circumstances. Besides, if it had been his intention to give but a life estate to his sons in any portion of his property, we should expect to find, in a will so intelligently drawn as this is, that intention clearly expressed. We should not expect to find it only by implication, and a rather weak implication at that. Moreover, that construction partially defeats the leading intention of the will by effecting an ultimate unequal distribution of the property.
But the ninth section, aside from the argument drawn from the tenth, may be fairly construed as I contend it should be. Its object is not to devise or bequeath property, but to fix a time for the payment of legacies already given. Hence the testator speaks of “ the share of any and every of my sons four fifths of that share is payable at his decease; and on the death of the legatee the other fifth is not ■in terms given to his personal representatives, but “ shall be distributed or go to ” them. They are to take, not as purchasers, for that would make the ninth section to some extent repugnant to the seventh. That would limit a remainder upon a fee. That is allowable in a will, the remainder taking effect as an executory devise, when such an intention is clearly expressed. If doubtful, and the language will admit of another rational construction, the latter should be preferred as the true one.
Sometimes the gift of a remainder after a fee will be re
There is no gift or devise in this section except by implication, and such implication need not be resorted to in order to discover the testator’s intention, as that intention is reasonably clear without it. Bearing in mind that the testator is simply providing for the payment of a portion of a legacy previously given, at the death of the legatee, there is no difficulty in perceiving that by “ personal representatives ” he meant those who should represent or succeed the son in the ownership of the property. That construction avoids repugnancy, does not reduce a fee to a life estate, and gives effect to the testator’s intention.
I am aware that there are decisions in England and in this country which hold that a gift to personal representatives is a gift to the next of kin. I have no occasion to controvert that rule ; but like all other arbitrary rules it should be sparingly used, and never when it tends to defeat the intention of the testator. But as I construe this will the rule has no application to this case, as here is no gift to personal representatives, but a time is named when a portion of a gift previously given is payable; and as that time is after the death of the legatee, the testator naturally speaks of those who succeed to his rights in property wholly personal as personal representatives.
In this opinion Granger, J., concurred.