137 A. 388 | Conn. | 1927
The questions in this case arise out of certain provisions in the will of Lena S. Bond. The first four articles of the will provide for the payment of the debts of the testatrix and make certain specific bequests. The Fifth Article bequeaths the income from $15,000 to her husband, to be paid to him in monthly instalments, with a provision that, should emergencies arise making that income insufficient for his support, the trustee of the fund may use such portions of the principal as it deems necessary; the Sixth Article appoints the plaintiff trustee of the fund; and the Seventh Article proceeds as follows: "Such sum as may be necessary to pay charges of the trustee shall be set aside for that purpose." The first two questions upon which we are asked to advise are: "(a) Should the sum provided by Paragraph Seventh of the will, to be set aside *139 to pay the charges of the trustee under Paragraphs Fifth and Sixth, be taken from the residuary estate and turned over to the trustee by the administrator with the will annexed, in addition to the $15,000 which is the corpus of that trust; or (b) should the said sum of $15,000 only be turned over by said administrator to said trustee from which said trustee should then deduct and set out said sum for his charges?"
In so far as the intent of the testatrix is concerned, the form in which the questions are put goes far to answer them. The testatrix obviously had in mind the creation of a special fund out of which the charges of the trustee were to be paid. Had she intended that those charges should be paid out of the income of the $15,000 fund, that result could have been obtained by a simple provision that they be deducted from it, and one with the intelligence manifest in the terms of this will would hardly have created such an unnecessary complication as would arise out of the division of the fund and the allocation of a certain part of it to the discharge of those charges. The testatrix desired her husband to have the whole income of the $15,000 fund, and to that end intended to make an additional provision for defraying the charges of the trustee.
One of the requisites of every bequest of money in trust is that it shall fix with reasonable certainty the amount given. Wordin's Appeal,
There is nothing in the record to indicate that those charges cannot be fixed in advance with such certainty that the amount of the fund necessary to provide for them can be determined with reasonable accuracy. "Indeed we believe they may be, and with no more difficulty than is experienced in matters occurring in the almost daily practice of the courts of probate in this State." Wordin's Appeal,
In the first paragraph of the Eighth Article of her will the testatrix gives one half of the residue of her estate "to my niece, Mary B. Weaver, and her heirs absolutely"; and the second paragraph of the Article then proceeds as follows: "Of the remaining one half of said residue and remainder I give and bequeath to nephew, Daniel T. Weaver, the same to be held in trust by niece, Mary B. Weaver, and the income paid to said *141
Daniel T. Weaver." We are asked to advise as to the provision last quoted, the question being put in this form: "(c) Who is entitled to the one-half of the residue and remainder after the death of Daniel T. Weaver under the second paragraph of Paragraph Eighth of said will?" This question is not happily phrased, but, in effect, it asks as to the estate in the property taken by Daniel T. Weaver, whether it is a life use, leaving a remainder interest undisposed of, or an absolute estate, qualified only by the provision that during his life the property be held in trust and that he enjoy only the income from it. As this provision is contained in the residuary clause, any interest in the property undisposed of by it must be regarded as intestate.Grant v. Stimpson,
The terms of the Eighth Article are sufficient in themselves to sustain either of the suggested interpretations. It is not necessary, in order to devise or bequeath an absolute estate in real or personal property, that words descriptive of such an estate be used, if the intent to give it appears from the will taken as a whole;Houghton v. Brantingham,
To (a), we answer, yes; to (b), we answer, no; to (c), we answer that Daniel T. Weaver has an absolute estate in that portion of the residue bequeathed by the second paragraph of Article Eighth, subject, however, to the provision that during his life the property shall be held in trust for him by Mary B. Weaver.
No costs will be taxed in this court in favor of any party.
In this opinion the other judges concurred.