| Conn. | Jun 15, 1923
By the terms of the will under clause three, the trustee holds one half of the testator's estate in trust to pay over annually and oftener if convenient, the net income to the four nephews, three nieces, one grandnephew, and one grandniece of the testator, in the proportions therein specified. These relatives, whom for convenience we will speak of as the five nephews and four nieces of the testator, all survived the testator, who died April 6th, 1921. Since the testator's death two of these relatives have died leaving children surviving them. The rights of children of the deceased nephew and niece in the trust fund of clause three and the widow's fund of clause two are, therefore, matters of immediate interest.
On June 3d 1921, one of the nephews, William Edgar Nash, died, leaving an only child, a daughter, Carrie E. St. John, who was duly appointed administratrix on her father's estate.
On May 15th, 1922, Sarah Elizabeth Coley, a niece mentioned in clause three of the will, died, leaving two children surviving her, and an administrator was duly appointed upon her estate.
The will provides as follows in clause four: "Upon the decease of any of the persons [the five nephews and four nieces] mentioned in the third clause of the will, the trust created for the benefit of such deceased person or persons shall thereupon cease, and I give, devise and bequeath said trust estate, upon such termination, freed from such trust, as follows; to the children of said William Edgar Nash, three thirty-seconds of the estate, to be equally divided among them." *193
The will provides in like manner as to the effect of the death of Sarah E. Coley, or any other of the cestuisque trustent mentioned in clause three of the will.
The terms of clause four provide that upon the decease of a nephew or niece the trust created for the benefit of such deceased person or persons shall cease. It does not provide that the trust created under clause three for all the nephews and nieces shall cease, upon such contingency. Furthermore, the fifth clause provides that on the death of a nephew or niece leaving no child surviving, the "share" which such a child would have taken shall become a part of the trust fund. This discloses that the testator did not intend that the death of a nephew or niece should terminate the entire trust, but only affect what he terms the "share" of the deceased in the trust fund. It is apparent, therefore, from the provisions of the will, that the testator did not intend the entire trust created by clause three to terminate at the death of one of the cestuis quetrustent.
This construction of the will creates no difficulties in dealing with the trust fund in accord with the clauses of the will. As a result of this construction, the interest of a nephew or a niece in the principal of the trust fund terminates at his or her death, and if such relative leaves surviving children they become, by clause four, at once entitled absolutely to the fractional part of the principal of the trust fund termed his or her share, and thereupon the estate of such deceased nephew or niece has no interest in his or her share of the trust fund.
If at the date of the death of a nephew or niece with a surviving child, there is apportionable and undistributed earned income of the trust fund, then such portion of such income as is appropriated to such nephew or niece by the will would belong to his or her *194
estate, by the ordinary rules of succession. Green v.Huntington,
There are further interests that the children of such deceased relatives have in the estate, such interests arising (1) under clause two upon the death or remarriage of the widow, and (2) under clause five upon the death of a nephew or niece without children surviving. Whenever the interest of the widow in one half of the estate ends by her death or remarriage, that property becomes, by clause two, part of the trust created by clause three. The testator, by the terms of the will which we have discussed, indicates by its scope and purpose that he clearly intends to confine its benefits to nephews and nieces and their issue, and that he intends an equal distribution of the entire estate among such beneficiaries. Construing the will in the light of this purpose, the children of the deceased nephew or niece, whether born before the death of the testator or after his death, upon the death of their parent, have a vested interest in the principal trust fund of clause three and in the widow's fund of clause two. The gifts to the children were gifts to a class, which class would open to take in after-born children. Eaton v. Eaton,
The trust fund under clause three, and the widow's fund under clause two, are each separate and entire, and must be so maintained for administrative purposes, *195 but for the purpose of clearly gathering the testator's intent, it is convenient to consider the trust fund under clause three as, at its inception, divided into thirty-two equal fractional parts, a group of which parts is appropriated to each nephew and niece in the proportions in which the income is distributed, and that under clause four, upon the death of a nephew or niece leaving children surviving, the trust as to the group of these fractional parts, deemed appropriated to such relative, ceases, and the surviving children of the deceased relative become at once entitled absolutely to such part of the trust fund.
After the death of a nephew or niece the income of the trust fund, whether depleted by the payment of shares to children or undiminished by death without children, is thus distributed: the proportion of the income which would be due the then surviving nephews and nieces, would be found by taking the fractional shares of income provided for the surviving nephews and nieces in clause three, and treating the sum of the numerators of such shares as a new denominator with which the original numerator applied to each such relative makes a fraction which fixes the portion of such income each surviving nephew or niece would be entitled to.
In the reservation the parties have formulated many questions relating to situations that have not yet arisen, as, for instance, as to the meaning of the word "children" as used in the will. It is apparent that the construction of that word may affect the interests of persons yet unborn. We have held many times that "advice is not given, and should not be given by the Superior Court, upon questions unrelated to contingencies which have arisen or to conditions that exist."Eaton v. Eaton,
Turning to the specific questions of the reservation, *196 we answer in so far as the contingencies that have arisen, and the conditions that exist warrant.
Q. I. As far as the children of the deceased nephew and niece are concerned, their interests have now vested.
Q. II. As to such children, they now have vested interests which they can dispose of.
Q. III. Children of a nephew or niece born after the death of the testator become members of the class of children to whom bequests are made.
Q. 5-I. The trust created by clause three of the will should be held as an entire and distinct trust fund subject to be diminished and increased by the terms of clauses two, four and five.
Q. 5-II. As an entire trust estate the net income to be fractionally distributed as described in the foregoing discussion.
Q. 5-III. No.
Q. 5-IV. The estate of a deceased nephew has only a possible interest in undistributed income, and a widow no interest apart from her general interest in her husband's estate.
Q. 5-V. The children of a deceased parent receive the fractional share of the clause-three fund deemed appropriated to the parent at his death, and so also of the widow's fund when it becomes available.
Q. 5-VI. No.
Q. 5-VII. A proper share proportional as to time in any earned, undistributed, apportionable income.
Q. 5-VIII, IX, X. These situations do not warrant an answer.
The Superior Court is advised to render judgment as to the several matters in which an adjudication is asked in accord with the foregoing answers to the questions submitted in the reservation.
In this opinion the other judges concurred.