122 A. 386 | Conn. | 1923
The seventh article of the will of the testatrix gives to her executors the residue of her estate "to be distributed at their discretion." Read free from considerations arising from claimed rules of construction, this provision seems to clearly indicate that the testatrix desired her executors to take this property and make such disposition thereof as to them seemed best. We think, then, that the discussion of the questions raised in the reservation can properly be approached by *605
considering, first, the claims of these defendants who contend that the gift to the executors is upon a trust too vague and indefinite to be enforced. Taking up first such claims of law as are pressed in this behalf, we find it asserted that the giving of general pecuniary bequests to the persons who are afterward in the will named as executors is inconsistent with an absolute gift to these parties as executors. This claim, of course, entirely ignores the provision as to distribution just quoted, and assumes that the executors qualifying will apportion the residue among themselves and exclude the other relatives of the testatrix; that because the executors have the power so to do, they will proceed in that way, and that hence the provision now considered could never have been intended to result in giving such a power and estate, albeit such an estate is necessary to effectuate the purpose which the testatrix had in mind. This point will be discussed more at length when later we consider the provisions of the will in detail; we now give attention to the authorities cited as supporting such a contention. In Haskell v. Staples,
We fail to find any case where the rule of construction claimed by these defendants was made the sole or the controlling reason of decision, and must conclude that in so far as being a cardinal rule of construction it is one of quite minor importance, and to be given such weight only as is justified by the context and general scheme of any particular will. *607
As applied to the will in question, we note that $1,000 each is given to all of the seven nephews and nieces of the decedent, and that the executors are three of this class of legatees. In making these gifts the testatrix, in the familiar language of conversation, was remembering her nephews and nieces. Her estate was of considerable size, and the amounts given as above are certainly so small as not to indicate any ulterior reason in her mind directed to the fact that they were to be executors, and also her residuary legatees. Such a concurrence in wills is not infrequent. In the instant case we cannot regard the legacies to the nephews and a niece as modifying the residuary provision.
It is further insisted that the power of sale given to the executors in the will is superfluous if they take the estate beneficially. In the case of In re West, L. R. (1900) 1 Ch. Div. 84, cited to this point, there was an express trust which did not exhaust the residue, and it was held that the character of the trust was impressed upon the whole fund and that the trustees could not take beneficially the unappropriated part of it. The case of Thomas v. Anderson, supra, is again invoked. The court, as we have seen, held that the will established a precatory trust, and negatives a beneficial bequest because of a power of sale given to the executor, saying that the language conferring the power is mere surplusage "if the residuary estate was given to him as his private property. Every owner of private property has a right to exercise all those powers with respect to it." Christman v. Roesch, supra, is in accord withThomas v. Anderson on this point.
However legitimate this observation may be as applied to the law of Missouri passed upon in Thomas v.Anderson, it certainly is not adapted to the practice existing in Connecticut. A power of sale in this jurisdiction is convenient in the simplest will, and almost *608 a necessity in an instrument which is comprehensive and contemplates a considerable time in the full execution of its provisions. It enables sale of real property pending the settlement of an estate, without the necessity of an application to court for an order, attended perhaps with the expense of a large charge for a surety bond, it facilitates transfer of securities, and in other ways is useful.
Looking at the will in question in the light of what has just been said, and comparing it with prior testamentary endeavors of the testatrix, we find in the will of 1915 (Exhibit H) and the draft-will of 1919 (Exhibit I) powers of sale in practically identical terms; and further, in the will of Maria P. Gilman, and in that of Emily S. Gilman, her sister (made part of the record as Exhibits B and C), similar provisions exist, inserted in all of these instruments for the evident purpose of facilitating the settlement of estates, which were likely to run over a considerable time before final disposition could be made.
Examining in detail the will under consideration, we note that in the first place it contains a trust provision for the benefit of Maria Louisa Lane during her life, and also that the use of all of the residuary estate is given for life to William C. Gilman; both the trust and the life use just referred to were not unlikely to continue for some years, and for the management of them the power of sale was a valuable and convenient instrumentality. Article seventh of the will, with the construction of which we are dealing, contains two successive bequests of the residue, the first to William C. Gilman for life, the second to the executors to be by them distributed. The latter took no interest in possession, beneficial or otherwise, in this estate until the death of William C. Gilman. The latter, upon giving the statutory bond, became entitled to the custody of the personalty included in the residue, but without *609 power to dispose of the same or to change investments. By the ninth article of the will the executors are given this power. So that in this will, as in the prior testamentary documents alluded to, the power of sale is simply convenient machinery of administration. That the testatrix, in view of what has been said, inserted this provision with the idea claimed by counsel, is not borne out by the purport of the will, nor by prior existing facts which the testatrix may have had in mind.
We now pass to the principal contention of the defendants whose claims we are now considering, to the effect that article seventh is impressed with a trust of a precatory nature, and that for want of definiteness the trust is unenforceable and fails.
As bearing upon this contention these defendants make three principal claims: first, that the gift to the executors eo nomine implies a trust; second, that a trust is implied by the use of the words "to be distributed," and that the trust so implied is indefinite and unenforceable; and third, that the language of the will is consistent only when construed as attempting to impose a trust upon the executors.
With reference to the implication that the gift to the executors as such implies a trust, there are cited the following cases: Nichols v. Allen,
The above extract states the law of England as it has been received for nearly fifty years in that country. 2 Jarman on Wills (6th Ed., English) 1118; Theobald on Wills (7th Ed., English, Canadian Issue) 486. As we have seen, there are American cases which assign to a bequest to an executor, as such, an importance greater than is above expressed; there are other cases which treat such a bequest as on a par with other salient features in any given will, and from the general tenor of the instrument assign to it the importance to which it is entitled, which in some instances may be great and in others of slight significance. We do not think such a bequest, while always a factor to be considered and reckoned with, in ascertaining the intention, should be given an emphasis approximating to a presumption. From the weight attached to this claim by counsel we have given it somewhat extended discussion, but fail to see that in the instant case it is so controlling as to foreclose further discussion of the provisions of the will as an entirety.
Passing to the second claim of these defendants as before stated, that by reason of the language of the residuary clause a trust is created, we cite the familiar rule that whether a trust is created by a will is to be gathered from "the general purpose and scope of the instrument."Colton v. Colton,
Counsel on each side of the present controversy exhaustively and with great diligence have collected the cases on this point in favor of their respective contentions, which we shall briefly review, but having in mind that in the interpretation of a will in general each one must stand by itself, and that precedents are entitled to little weight, where the cases involved are not precisely analogous, Lyon v. Acker,
It remains to consider certain cases cited by counsel more nearly approximating the instant case in their provisions. In Nichols v. Allen,
Passing to the cases cited by the opposing group of defendants including those named as executors together with Elisabeth Gilman, whom for brevity we will designate as executor defendants, we shall apply the rule heretofore followed of specially considering only those cases which approximate closely the testamentary provisions involved in the Lane will. This will remove from special consideration the following cases: Dawson v. Clark, 15 Ves. Jr. 409 (executors took by virtue of law prior to Act of 1830); Meredith
v. Heneage, 1 Sim. 542 (bequest to the testator's wife of the whole estate in fee, "unfettered and unlimited");Hughes v. Evans, 13 Sim. 496 (express trust followed by beneficial gift); Wells v. Doane, 69 Mass. (3 Gray) 201, (favorable but sufficiently noted above); Williams
v. Arkle, L. R. 7 H. L. 306, (direct, unqualified gift to executor); In re Mason,
The following cases approximate more nearly to the will in the present case, and will be considered more at length. In Beck's Appeal,
The following cases cited in the brief of the executor defendants, but not discussed, we deem worthy of notice. In Hill v. Fiske, 69 Misc. Rep. (N.Y.) 507,
In the following cases of residuary bequests to executors an absolute estate was held to have been given: *621 Harned v. Wise,
Passing now to cases which have arisen in our own jurisdiction, we note the rule established by the leading case of Gilbert v. Chapin,
The will considered in Bristol v. Bristol,
In Seymour v. Sanford,
In Hughes v. Fitzgerald,
In Wait v. Huntington,
By the course of decision in this State, as well as the weight of authority in other jurisdictions heretofore referred to, we are led to the conclusion that the provisions of the Lane will under examination are adequate to create in the executors an absolute and beneficial estate, unless such an interpretation is precluded by the general scheme and object of the will, which we will now consider.
At the time of making her last will the testatrix was one of two survivors of her generation, of a large family, and just previous to her death the sole survivor. She was eighty years of age when she made this will, and eighty-three at her death. She had resided in the homestead at Norwichtown for sixty years, at first with her mother and sisters, and at the time of executing her will she lived there with her brother, William C. Gilman. As appears more at large in the statement of facts, she had for many years dispensed hospitality there to all of her family, and the old home had been a gathering place for them. Her sister Emily, cotenant with her for many years, had in her will (Exhibit C of the finding of facts) provided that after the death of Louisa G. Lane, her brother William, and her nephews George H. Gilman and Francis Gilman, sons of William, should enjoy successive life estates in this real property with remainder to a corporation as a neighborhood house, but with a further provision that any of the descendants of her mother and father might occupy the premises at a very moderate rent. Louisa G. Lane made the same provision in a prior will (Exhibit H of the finding) as regards successive life estates in this real property, and had also given William a life estate in all of the residue of her property, and had provided in the same way for the occupancy by other members of the family at a moderate rent. The same provisions are contained in the draft-will prepared according to her instructions *625 but never executed (Exhibit I of the finding). She had for some years prior to 1919 contributed to the support of her niece Caroline T. Gilman and Francis Gilman. In her prior will the eventual residue of her estate was left to be equally divided between her nephews and nieces, and the same provision occurs in the draft, Exhibit I. Not until her last will was her residuary disposition of her estate changed by leaving it to her executors for distribution. From all of these facts there emerges a very evident desire to keep up the continuity of her estate and particularly of the family homestead, and this latter object could manifestly only be effected by some considerable appropriation of income from her personalty. It is not unlikely that she also desired the continuance of pecuniary aid to Caroline and Francis. It is fairly inferable that between the date of her prior will and that of the instrument she finally executed, — while as to the pecuniary legacies and the provisions in trust and otherwise for members of the Lane (her husband's) family, her desires remained the same, and while she evidently wished to make the same remembrances to her nephews and nieces, — she had altered her plan with reference to the disposal of the residue of her estate after the death of her brother William. The draft-will, Exhibit I, was drawn from her instructions, and it differs from the will she finally executed in no essential particular, except the recasting of the residuary provisions. In respect to these latter, as she evidently no longer contemplated an equal division of the residue of her estate equally among her nephews and nieces, she might have made an unequal division, in accordance with her views of their necessities or deserts, but this she was evidently not prepared to do. There remained for her the alternative of establishing a formal trust with definite provisions, or of giving the whole absolutely to some person or persons, trusting that in *626 that way her desires would be carried out more satisfactorily than by the specific provisions of a trust. It may well be that at her advanced age she realized her inability to foresee changed conditions likely to happen in the near future, and that she felt more reliance upon the judgment and discretion of persons who would from long intercourse have a general acquaintance with her desires and ideas, and adapt the disposition of her estate to the condition of affairs obtaining after the end of the life estate of her brother, which might not occur for some little time, and also keep her estate together for such time as might be thought expedient with respect to objects above referred to. That she had in mind the preservation of a continuity in this regard, is evidenced by the provisions of her last prior will and of the draft, Exhibit I, wherein she provided for successive life estates in the homestead to her nephews George H. Gilman and Francis Gilman, and also further provided that after the termination of the life estates set up, any descendant of her father and mother might occupy the house at a very moderate rent. Just how this latter provision could have been carried out does not concern us, but it is prime evidence of the testatrix's intent.
In rearranging her dispositions she had the background of the wills of her two sisters, of her uncle, her prior will and the draft afterward prepared under her instruction and not executed. In this connection it may be taken for granted that she had received considerable legal advice in the past, and had acquired a considerable amount of accurate knowledge with reference to testamentary affairs and of the course of administration of estates. Without doubt she was familiar with the form and requisites of an express trust, as she created such in each of her wills and in her draft-will. She evidently chose the method adopted by her uncle, of giving an absolute fee and trusting to the donee *627 to make a disposition of her estate in general accord with her desires and preferences, as they might have acquired by more or less definite instruction, or by acquaintance with her views derived from long and familiar intercourse, and also having regard to changed conditions existing after her death, which she was unable to forecast. Three of her executors lived in Norwich and the fourth was her nephew and legal adviser. Accordingly we find her giving an absolute estate to her executors and added to the bequest the words, "to be distributed at their discretion." In the next article of the will she named the executors, and added, "or whichever shall qualify and the survivors of them, as and for the executors of this my last will and testament." There is nothing peculiar in the words just quoted. It is an ordinary conveyancing phrase to avoid any question of power where some executor does not qualify, or where he does not survive the full execution of the will. So far as it has any bearing upon the general construction of the will, it tends to personalize the gift. William C. Gilman had a life estate to endure perhaps some time; that he should be an executor during the period of that estate was entirely proper; but in providing for the distribution of the final residue, the testatrix knew that it would be accomplished by the agency of survivors.
Five of the defendants, including two grandnephews, claim that by the addition of the words, "to be distributed at their discretion," a precatory trust is grafted upon the prior gift which is in terms absolute. That such should be the case, as we have seen from our examination of the authorities, it is necessary that the acts and judgment of the executors be in some way controlled, and that the final result of their administration should reflect the intent and will of the testatrix and not their own, as to objects and beneficiaries. These *628
defendants say in effect that there is an intent manifested by the testatrix to do this thing, inoperative because vague and uncertain; that a trust was born instantly to die, because the legal environment precluded its survival. Such a construction should not be given to the provision "unless imperatively compelled. . . . It is presumed that the testator intended to make a legal disposition of his estate, and not a void or illegal one. Intestacy is what he never intended or contemplated. It is the duty of the court to give to the language used such construction as will make the instrument or limitation legal and valid, if it can be done in harmony with well-settled rules, with the manifest intent, and adjudicated cases, rather than such construction as will render them illegal and nugatory."Du Bois v. Ray,
But there is, in the provision under consideration, a full discretion annexed to the absolute gift, either to act or not to act; and where this is the case no trust by implication can arise. The provision for distribution in no way limits the absolute estate, and persons possessed of such an estate may distribute it; a distribution of some sort, is an inherent element in ownership.
The fallacy of the argument of these defendants is their confusion of legal and formal intent, with desire and expectation. The testatrix had a legal and formal intent — to create an absolute and beneficial estate in her executors. She also doubtless had expectations and desires which could best be effected through the free, unfettered and discretionary action of her executors. She parted intentionally and deliberately with the absolute and definite control which she might have retained by a formal and specific trust, in order that her real desires and expectations might be the better effectuated, conditioned as these latter evidently might be by events happening after her death, which in her lifetime she could not anticipate. But this class of defendants say that the provision for distribution, if it be given any force, must in a precatory manner limit the legacy, else why was it inserted. We think that the explanation is plain upon the surface. The testatrix had adopted as on the whole preferable, the model of her uncle's will containing an absolute bequest, but connected with certain wishes communicated to the three legatees of a general nature, but largely affected by the exercise of their discretion. He gave a reason that formal trusts were often not clear in their construction, and that burdensome litigation might result. This reasoning evidently commended itself to *630
the judgment of the testatrix. She gave an absolute estate, and then by way of emphasis added the words as to distribution. That she intended the words to be any limitation of the power or estate of the executors is not borne out by the general scheme of the will or such surrounding circumstances as appear in the finding. In Cheney v. Plumb,
The argument that the testatrix could not have intended to give outright the residue of her property to three persons to the exclusion of her other relatives of the same degree and for whom she felt the same affectionate regard, is many times reiterated, but the assumption that because they could keep it they would, is certainly not complimentary to the sagacity and discernment of the testatrix, nor in accord with the judgment *631
and opinion which an intelligent and unbiased outsider would form from reading the will in the light of the collateral matter contained in the finding. To furnish any degree of plausibility to their claim, these defendants must find something in the word "distributed" which by its technical force will operate to limit the absolute gift to the executors, and their plenary power of disposal. Had the words used been "divide," or "dispose of," or "apply," their contention, as we have seen, would have slight support from the authority of similar cases. The words "distribute" or "distributed" are in familiar use; they are not recognized as terms of art in ordinary use, although when used in connection with the settlement of estates, they acquire a more restricted and technical meaning. That they are in any given case so employed, is a question to be answered by the occasion of their use in any particular connection. "The word `distributed' is not a technical word in conveyancing."In re Dunphy's Estate,
As we have said, the ordinary meaning which would be placed upon this provision when read by an intelligent person, would be that the testatrix intended to give *632 the residue of her estate to the persons named as executors, or such of them as might qualify or survive, to be by them disposed of at their absolute discretion, and that such was her clear intent. This intent must prevail unless definitely controlled otherwise by some legal rule or by the general intent of the will, read in the light of its context and the collateral facts found by the Superior Court. We find nothing in the case to show that it was so controlled, and are constrained to hold that the executors of the will take an absolute and beneficial interest in the residue of the estate, and that no trust has been created.
The Superior Court is advised that of the questions propounded for advice, question "a" should be answered in the affirmative, and questions "b" and "c" in the negative. The above answers dispose of question "d."
In this opinion the other judges concurred.