199 A. 555 | Conn. | 1938
This case came to the Superior Court as an appeal from an order of distribution made in the settlement of the estate of Wilbur F. Burrows by the Court of Probate for the district of Middletown. In the Superior Court the appellant, Guy B. Dolbeare, filed reasons of appeal, to which were annexed a copy of the will of the testator, and which contained various allegations as to the parties involved and their relationship to the testator's sister, through whom they claimed to share in the estate. The appellees in the Superior Court filed an answer which either stated lack of knowledge of or denied all the material allegations of the reasons of appeal. The trial court heard the case, filed a memorandum of decision and caused judgment to enter finding the issues for the appellant. No finding *288
was made. We are therefore limited in our inquiry to such material facts as appear upon the record to have been put in issue by the reasons of appeal. Practice Book, 189; Williamson's Appeal,
In his will the testator, after providing several legacies, gave the residue of his estate to his wife for the term of her life; he made certain gifts to be paid out of the residue at her death; and the dispositive portion of the will then concluded: "The balance of the said residuum, I give, devise and bequeath to my brother William H. Burrows and my sister, Mary G. Dolbeare, in equal shares if they survive my said wife; and in the event that only one of these survive her, then that survivor shall take the whole; and in the event that neither be living at the death of my said wife, then the issue, then living, of my said sister, shall take the share to which their mother would have been entitled had she been living."
The testator's wife has now deceased. Neither Mary G. Dolbeare nor William H. Burrows survived her, and the substitutionary gift to the "issue" of Mary becomes effective. When the testator's wife died, one son of Mary, Guy B. Dolbeare, was alive and had a living son; two other sons had then deceased, but there were living children of each. The Court of Probate decreed that the balance of the residue should be distributed to Mary's son, Guy B. Dolbeare, and to the children of her deceased sons. Guy B. Dolbeare appealed to the Superior Court and that court, sustaining the appeal, found that the whole balance should be distributed to him. The ultimate issue in the case is whether by the provision in the will that, should Mary and her brother predecease the testator's wife, her "issue" then *289 living "shall take the share to which their mother would have been entitled had she been living," the testator intended to make the gift only to the children of Mary, or intended to include the issue of any child of Mary who had deceased.
The word "issue" when used as a word of purchase and unaffected by any circumstances showing a different intent means descendants of every degree. Bartlett v. Sears,
In our State the case of Austin v. Bristol,
If we consider the question apart from authority, there are strong reasons against the adoption of the rule of interpretation referred to in the Wallace case. In the common parlance of today, issue is not ordinarily used when children are intended; indeed, its use with that meaning would sound to us strange and *291
stilted. In the case before us it appears from the reasons of appeal that at the time the will was executed the youngest of Mary's three children was about thirty-three years of age; it must have been to them that the testator's thoughts were directed rather than to children of Mary as an indefinite class; and that he would use the word "issue" in referring to the three children would be most unlikely. Whatever meaning we give to the provision we must depart from the primary meaning of one of the words, "issue" or "mother," and to give to the latter the significance of ancestor would take us little if any farther afield than to give to the former the meaning of children. Jackson v. Jackson,
There are no other provisions in the will which serve to indicate the testator's intent in the provision in question. However, there is one circumstance which is necessarily involved in the situation before us, and is of weight, that is the great improbability that the testator intended to make such a preference as would result if the entire balance of the residue should go to Guy B. Dolbeare, to the complete exclusion of the representatives of the two children of Mary who had deceased. There is nothing in the will or in such circumstances as are before us to indicate any such intention on his part. Of such a situation, in the opinion written by Cardozo, J., in Matter of Farmers' Loan Trust Co.,
There is error, the judgment is set aside and the case remanded with direction to dismiss the appeal.
In this opinion the other judges concurred.