1 A.2d 283 | Conn. | 1938
This action was brought by the executors and the trustee under the will of Lillie A. Coe, deceased, to secure an interpretation of the will and advice as to their duty. On June 11th, 1923, the testatrix made a will the terms of which, so far as relevant to the questions before us, were as follows: She gave a large number of legacies in varying amounts to relatives, one of them being $5000 to "my nephew Edward C. Wheeler"; she established three trusts in the amounts of $30,000, $25,000 and $20,000, respectively, the income to be paid to a named beneficiary or beneficiaries and in each instance provided that "at the termination of said trust the funds constituting it to become a part of my residuary estate"; the executor was directed during the settlement of the estate and until the legatees received their legacies "to pay monthly out of the income of the estate interest at the rate of five per centum per annum on the legacies bequeathed" to certain but not all legatees, and until the final settlement of the estate to pay interest monthly at the same rate to the beneficiaries of the trusts on their respective amounts; out of the residue of the estate $125,000, or if the residue was less than that, all the residue was given to trustees to build and maintain a community house in the town of Avon to be called The Amos Wheeler Memorial, and if the residue exceeded $125,000 the excess was given to a niece and certain nephews.
The testatrix thereafter made five codicils altering or adding to the provisions of the will and in each she "republished and confirmed" the will except for the changes made in it. In the first codicil she made a *582 further legacy of $5000 to "my nephew Edward C. Wheeler," to be in addition to the legacy given in the will. In the fourth she established two further trusts of $30,000 and $10,000, respectively, the income to be paid to a named beneficiary during his life and provided that at the death of the beneficiary or at her own death should she survive him the trustee should pay or distribute the fund, in one instance, "under the terms of the residuary clause of my said will" and, in the other, "in accordance with the residuary clause of my said will." The fifth and last codicil was made December 9th, 1935, the day before the testatrix died; the only change made was the designation of a trust company to act jointly with the executor named in the will; and this codicil concluded with a statement that: "I hereby republish and confirm my said will and codicils thereto in all respects except as altered by this codicil." The life beneficiary in one of the trusts established in the will has died.
The testatrix, when the will was executed, had a nephew Edward C. Wheeler but he died December 8th, 1933, before the execution of the last codicil. He had a son of the same name. The son claimed the legacies originally given to his father, but the trial court held that he was not entitled to them and this conclusion is one of the grounds of appeal. The son is, of course, not correctly described as "my nephew Edward C. Wheeler." Matter of Woodward,
The gifts to "my nephew Edward C. Wheeler" were valid and effective until the death of the father before the making of the last codicil. The failure of the testatrix to make any change in the provisions for him might well have been due to an oversight on her *584
part or to a willingness to abide by the effect of his death before her own as causing the legacies to lapse. There is not the same reason militating against attributing to the testatrix an intent to make a nugatory gift as would exist were the whole will originally executed at the date of the codicil. In Lee v. Lee,
That aside, the son, in order to establish his right to receive the gifts, must assume the burden of showing that the testatrix when the last codicil was made intended the words "my nephew Edward C. Wheeler" to have a different meaning than that which she had in mind when she originally executed the will. Presumably the will and the codicils which had been previously executed were before the testatrix when she executed the last codicil. If she then had intended to *585 make a bequest to the son of her deceased nephew it is reasonable to expect that she would have so described him, as she described other grandnephews in previous provisions she had made. The sole purpose of the last codicil was evidently to add a co-executor and there is no suggestion of an intent otherwise to change the provisions of the will or prior codicils. Leaving out of consideration for the moment certain extraneous evidence, there is nothing in the situation which shows an intent on the part of the testatrix to make a bequest to the son Edward C. Wheeler.
This extraneous evidence was to the following effect: The testatrix knew of the death of Edward C. Wheeler before the last codicil was executed; the son visited her at times after his father's death; both before and after that occurred she referred to him as her nephew and had stated that he was one of her favorite nephews; and on one occasion after the father's death in January, 1934, she talked to him about the fact of the bequest to his father and said that she had seen a lawyer and had fixed it so that he was to receive what his father would have received had he lived. The trial court admitted the evidence, subject to objection to be later ruled upon, apparently with the consent of all parties. In its memorandum of decision it held the evidence inadmissible upon the ground that, as the language of the will was clear and precise and the beneficiary intended existed and was accurately described, there was no ambiguity to be explained. Jackson v. Alsop,
However, even if the evidence had not been finally excluded, it could not have reasonably been held to have the effect claimed. The testatrix called the son her "nephew" before as well as after his father's death and her so doing would very slightly, if at all, indicate any change of intent on her part in the meaning she intended to convey by the republication of the will with the words "my nephew Edward C. Wheeler" still retained. The significant circumstance is, however, her statement that she had seen a lawyer and had fixed it so that the son was to receive the gift the father would have received had he lived. This statement clearly implied that in her mind the words of the will in themselves were insufficient to bring about that result, and something further needed to be done. The republication of the will without any change in this *587 provision cannot be regarded as sufficient. The conclusion of the trial court that the son was not entitled to receive the gift was correct.
Certain of the questions as to which advice was sought arose out of the provisions of the will as to the disposition of the principals of the trust funds after the death of the life beneficiaries. In each of the trusts established in the original will it is provided that at the termination of the trust the funds constituting it are "to become a part of my residuary estate," while in one of those established in the codicil, on the termination of the trust the trustee is directed to pay or distribute the fund "under the terms of the residuary clause of my said Will," and in the other he is directed to pay and distribute it "in accordance with the residuary clause of my said will." The trial court has found that there are not in the estate sufficient funds to pay pecuniary and trust legacies, by which apparently it meant those other than the gifts made to be paid from the residue. The contention in behalf of the trustees for the Wheeler Memorial, for which provision is made in the residuary clause, is that even though the other legacies cannot be paid in full the principals of the various trust funds, at the termination of the life uses, should be paid to them, and not used to make up any deficiencies in the other gifts.
Ordinarily the residue of an estate is that portion which remains after the payment of debts, charges and particular legacies. Phelps v. Robbins,
A testator may, however, vary this rule as to the application of the assets of his estate by provisions which show that, in such a case as this, the principal of the trust fund will not, at the termination of a life use, be used to make up any deficiencies in particular gifts but will go to the legatees named in the residuary clause. Matter of Reynolds,
The trustees for the Memorial rely largely upon two New York cases. In United States Trust Co. v. Black,
The trustees for the Memorial seek to distinguish the provisions for the trusts in the original will from those in the fourth codicil, claiming that, in the case of the latter at least, they are entitled to receive the entire amount of the fund at the termination of the trust. It is unlikely that the testatrix had a different intention as to the ultimate disposition of the funds established in the codicils from that she had as to the funds under the trusts established in the will. That aside, the language of the provisions in the codicils does not sufficiently indicate an intention that the funds should be paid to the legates named in the residuary clause as distinct gifts made to them rather *591 than become a part of the residue as such. In Smith v. Livermore, supra, the provision of the will in question exactly accorded with that of the second trust established in the codicil. Our conclusion is that in the case of all the trusts the funds fall into the residue at the death of the life beneficiaries, and that the trustees of the Memorial are only entitled to receive them as they or a part of them form a part of that residue.
The remaining questions presented by the appeal concern payments of interest or income to the various legatees. Under the finding it appears that a deficiency of assets will prevent the full payment of the legacies, at least until the termination of the trusts or some of them, but there would seem to be no doubt that ultimately there will be sufficient assets to pay all the particular gifts in full. The testatrix has unmistakably expressed her intent that in the case of the legacies with reference to which she directed that interest should be paid at the rate of 5 per cent. during the settlement or until the settlement of her estate, the beneficiaries should receive the interest provided from her death. That, by reason of the present deficiency of estate, those legacies cannot all be paid until some one or more of the remainder interests under the trusts become available is no reason why the legatees should not receive the interest at the rate specified upon the full amount of the legacies. State Bank of Chicago v. Gross,
With respect to the trusts established in the original will, upon which the testatrix directed that interest be paid, she could not have intended that the beneficiaries should receive during the settlement of the estate both that interest and the income of the funds, but the specific provision for interest at 5 per cent. takes the place of the income actually earned. On the other hand, the definite provision for the payment of interest shows that she was thinking of its payment as of the same nature as that directed to be paid upon the outright legacies. What has been said above as to the method of paying that interest would apply as regards the trusts established in the original will.
The provisions for the two trusts established in the fourth codicil created life uses in the beneficiaries named. The usual rule is that where a fund is given in trust, the income to be paid to the beneficiary, he is entitled to income earned by it from the testator's death during the settlement of the estate, and if the fund has not been separated from the corpus of the estate the average rate of income earned by the personal estate as a whole will be treated as the rate earned on the trust fund. Bridgeport Trust Co. v. *593
Fowler,
The reason for the payment of income from the death of the testator in the case of trusts such as these is that this gives effect to the testamentary intent disclosed in such a gift; as regards the beneficiaries the legacy is really one of the income of a definite fund. Webb v. Lines,
The questions propounded in the complaint were unnecessarily involved and complicated, making difficult the rendition of a judgment which would satisfactorily meet the needs of the plaintiffs for advice. In its judgment the trial court construed them rather literally. In a suit by executors or trustees for advice *595 a considerable latitude may properly be allowed in giving scope to the questions propounded where to do so places no unfair burden upon the parties and they have not been in any way misled as to the issues to be presented to the court. We have discussed the questions argued before us upon that basis, and because a statement sufficient for the guidance of the executors and trustees seemed to require it have pursued our inquiry somewhat beyond the matters presented upon the face of the pleadings. The result to which we have come is that the judgment in general is correct as far as the trial court passed upon the issues presented but that the answers to the questions propounded require some modification and amplification.
Rather than attempt to direct specific modifications of the answers in the judgment we sum up our conclusions by rephrasing those answers in so far as any change is necessary and, in so doing, for the sake of clarity, we combine certain of the questions. The answer to questions b and c should be: When the estate presently available is applied to the discharge of the legacies given outright or in trust upon which the will directs that interest be paid, interest upon the full amount of the legacies stated in the will should first be paid and any balance in the hands of the executor should then be used to reduce the principal sum of the legacies. The answer to questions d and j should be: Leonard B. Wheeler, beneficiary under one of the trusts established in the will, and as such entitled to receive interest in accordance with the previous answer, is not entitled to receive any other income from the estate during its settlement. Amos L. Wheeler and Sarah A. Wheeler, beneficiaries under the trusts established in the fourth codicil, are each entitled to receive income from the death of the testatrix upon the amount of the respective trust funds at the average *596 rate of income earned by the personal estate as a whole, disregarding the amounts of interest payable under the directions in the will upon certain legacies, but this income to be subject to present abatement in the same proportion as the other legacies, including the principals of the trust funds. The answer to questions e, f, g and h should be: In the case of all the trusts both those created in the will and in the fourth codicil the funds at the death of the life beneficiaries fall into the residue and the residuary legatees are entitled to receive them only as they or some part of them form a part of that residue. Question k should be answered as follows: When the balances due upon the legacies upon which the will provides for the payment of interest are paid, interest should be added at the rate specified in the will; when the balances due upon the trusts created in the fourth codicil are paid, the beneficiaries are entitled to receive the amount by which payments of income due them has been abated because of the present deficiency of assets, and income upon the unpaid balance of the bequest should also then be paid, that income to be calculated for the period before the distribution of the funds now available upon the basis of the average rate of income of the personal property of the estate as a whole, and for any further period during which the deficiency continues upon the average rate of income earned by the fund the determination of the trust as to which has made possible the payment of the deficiencies.
There is error in part, the judgment is set aside and the trial court directed to enter judgment in accordance with this opinion.
No costs will be taxed to any party.
In this opinion the other judges concurred.