123 A. 921 | Conn. | 1924
The second question reserved naturally presents itself for solution at the outset, since if it is held, under the situation presented, that under the seventh article of the will "the remaining principal of the general share or parcel at the beginning of this Seventh article mentioned" is intestate estate, there should be no occasion for considering question one. The portion of the seventh article involved in the consideration of this question is as follows: —
"Upon the death of my son, the principal of said fund of seventy-five thousand dollars shall immediately become beneficial to his child born during my lifetime if he shall leave but one, or to the issue of such child if he or she shall die before my son leaving issue, and in such case the remaining principal of the general share or parcel at the beginning of this Seventh article mentioned shall be distributed equally to all my grandchildren and the issue of such deceased grandchildren *357 as may be born during my lifetime, if any, they to takeper stirpes and not per capita."
The executors under the will of the deceased son of the testatrix, James G. Batterson, claim that the term "in such case" in the above excerpt from the seventh article of the will, refers to the expression "or to the issue of such child if he or she shall die before my son leaving issue," and that as the child of her son, to wit, Walter E. Batterson, did not die leaving issue before the death of the son of the testatrix, the contingency under which "the remaining principal of the general share or parcel at the beginning of this Seventh article" was to be distributed never arose, and hence it became intestate estate.
This claim and construction, we think, cannot be sustained, as the expression "in such case" clearly refers to "the principal of said fund of seventy-five thousand dollars becoming beneficial" to the child of her son born during testatrix's lifetime or to the issue of such child. This construction is so obvious and necessary, that the matter does not justify discussion.
As Walter E. Batterson, the sole surviving child of her son James, was born during the testatrix's lifetime, the principal of the trust fund of $75,000 did in fact become beneficial to him, the contingency arose in which (such) case the "remaining principal" was to be distributed, and the remaining principal did not become intestate estate. Question two must therefore be answered "no."
The remaining question arises from the situation created by the death of the testatrix's son on January 17th, 1923. The testatrix, as appears by article seventh of her will, created several trusts out of one half of the rest and residue of her estate, amounting to about $190,000. For each of her four grandsons living when the will was executed she created a trust of *358 $5,000. Three were children of her daughter and one the child of her son. She also created a trust of $75,000 for her son, James G. Batterson, Jr. Provision was also made in article seventh for the benefit of her son, for her trustees at their discretion to pay to him the net income of the balance of the one half of the rest and residue of her estate, and also portions of the principal. Article seventh then provides: "Upon the death of my son, the principal of said fund of seventy-five thousand dollars shall immediately become beneficial to his child born during my lifetime if he shall leave but one, or to the issue of such child if he or she shall die before my son leaving issue, and in such case the remaining principal of the general share or parcel at the beginning of this Seventh article mentioned shall be distributed equally to all my grandchildren and the issue of such deceased grandchildren as may be born during my lifetime, if any, they to take per stirpes and not per capita."
At the death of the testatrix's son in 1923, there were five grandchildren of the testatrix surviving, and no grandchild had died leaving issue; these five grandchildren consisted of one child of her son and four children of her daughter. The child of her son claims that under the above excerpt from article seventh, the "remaining principal of the general share at the beginning of the Seventh article mentioned," now amounting to about $103,000, should be divided among the grandchildren of the testatrix per stirpes, whereby he would receive one half and the children of the testatrix's daughter one half to be equally divided among them. The children of the daughter of the testatrix claim that under the will the "remaining principal of the general share" should be divided among the five grandchildrenper capita.
"To aid in the construction we invoke, first, the *359
paramount rule that requires us to ascertain if possible the intention of the testator from the language of the will and all the circumstances." Raymond v. Hillhouse,
The testatrix discloses no intent in any part of the will to modify the recognized construction of a gift to a class, by any indication that she intended to make the gift to this class a gift per stirpes. The several uses of the terms per stirpes and per capita in the will show that she was fully informed of the meaning of these terms and competently guided as to their use. Therefore, if it had been her intent to provide that the gift in question should not be divided among her grandchildren equally per capita, the method to accomplish that result was at her disposal.
The Superior Court is advised that the "remaining principal" of the estate, referred to in question one, should be distributed to the five grandchildren of the testatrix per capita, and that question two is answered in the negative.
No costs will be taxed in this court.
In this opinion the other judges concurred.