138 A. 159 | Conn. | 1927
Lead Opinion
On March 18th, 1918, Adelaide S. Farrington made and executed her will disposing of both real and personal property, naming the plaintiff as sole executor and trustee thereunder, with "full power and authority . . . to sell and convey any real estate which may form a portion of my estate or of the trust fund, if such sale should be deemed to be for the best interests of the beneficiaries." The death of the testatrix occurred July 9th, 1925, and the plaintiff duly qualified and proceeded with the settlement of the estate. After the payment of all lawful claims there remains in the hands of the executor sufficient to pay all the legacies provided by the will leaving a considerable residuary estate. The testatrix was survived by her husband, Martin L. Farrington, who died January 29th, 1926. She had two nieces, Mrs. Grace A. Chase and Mrs. Florence W. Lawrence. The latter survives, but the former died October 5th, 1918, leaving her husband. She left no parents and no children or *181 representatives of children, and her only surviving next of kin is her sister Mrs. Lawrence.
By the third paragraph of her will, the testatrix gave Mrs. Chase and Mrs. Lawrence $1,000 each, and added: "If either should die before me, the heirs of my niece so dying shall receive the share to which such niece would be entitled if living."
In the fourth paragraph the testatrix provided that the residue of her estate should be held by her executor in trust, with power to manage and invest it under the laws of this State, and directed that the net income thereof be paid over to her husband during his life. She then directed that upon the death of her husband sundry sums be paid from the fund to designated beneficiaries, and that the remainder "shall be equally divided between Mrs. Grace A. Chase aforesaid and Mrs. Florence W. Lawrence aforesaid, to be theirs absolutely, and the heirs of either who may have died to receive the share to which such deceased beneficiary would have been entitled if living."
Upon the foregoing facts, the controlling question presented to this court for determination is, whether the word "heirs," as used in the third and fourth paragraphs of the will, includes Mr. Chase. Counsel for the husband claim that the word should not be interpreted in its technical sense of one entitled to inherit the real estate of a deceased person, unless the intent of the testatrix be found to so limit it, while counsel for the niece say it must be so interpreted unless the contrary intent appears. We have held, in effect, that the technical meaning will be given to the word if the intent of the testator to use it in a different sense does not appear; but it is a controlling and equally sound rule of construction, that where the intent can be found from the context and the circumstances that intent shall govern. In other words, the dominant rule in *182
the construction of this term, like all other terms of a will, is that the intent of the testator shall be made effectual if possible. Hartford Trust Co. v. Purdue,
A surviving husband or wife could not fairly be said to be an "heir," when the word was restricted to those who inherit real estate and when the only rights they had by our law were estate for life, by curtesy or dower, having their origin not in succession at death, but in the pre-existing marital status. In Connecticut since 1699, surviving wives have taken a share in a husband's property by virtue of the law for the distribution of intestate estates. 4 Colonial Records, 306. In 1877, dower and curtesy rights, as regards any marriage thereafter contracted, were abolished and a surviving spouse was put on the same plane in the right to inherit, and in the event of intestacy took a certain share by absolute title. Public Acts of 1877, Chap. 114. We pointed out in Mathewson v. Mathewson,
While we made reference in Ruggles v. Randall andHartford Trust Co. v. Purdue, supra, to the historical meaning of the word, and excluded a surviving wife in one case and a surviving husband in the other, it will be seen that they were decided upon the particular facts of those cases. We recognized the same considerations in Morse v. Ward,
As to the meaning of the word "heirs" in the present case, the claim is made in behalf of Mrs. Lawrence, that the cases of Ruggles v. Randall,
Cases are numerous where the statutory interpretation has been put upon the word "heirs." Morse v.Ward,
In answer to the first question propounded to us: Marcus Chase is the sole heir of Grace A. Chase under the provisions of the Third Article of the will of Adelaide S. Farrington; and in answer to the second question: Marcus Chase is the owner of the vested remainder under the provisions of Article Fourth (f) of the will of Adelaide S. Farrington.
In this opinion MALTBIE, HINMAN and JENNINGS, Js., concurred.
Dissenting Opinion
Counsel for Mrs. Lawrence claim that "heirs" in Articles Third and Fourth should be interpreted in its primary sense — that is, one entitled to inherit real estate of a deceased person — unless the intent of the testatrix as manifested in the will be not to so limit it, while counsel for Mr. Chase reach the contrary conclusion, that "heirs" should not be interpreted in its primary sense unless the intention of the testatrix as manifested in the will be to so limit it, but should be interpreted to mean those who take under the statute of distribution. The weight of authority in this State supports the construction that "heirs" is to be given its primary meaning unless a contrary intention is manifested in the will when read in the light of the surrounding circumstances. CHIEF JUSTICE TORRANCE says, in Gerard v.Ives,
Unless we can find within this will, read in the light of its surrounding circumstances, an intention on the part of the testatrix that by the use of "heirs" she meant those who would take under the statute of distribution, we should advise that the testatrix used "heirs" in its primary sense and therefore Mrs. Lawrence and not Mr. Chase is the sole heir of Mrs. Chase. There is nothing in the will nor in the facts stipulated to indicate that the testatrix intended to use the term "heirs" in any other than its primary sense. It follows that "heirs" as here used must be taken in its primary sense, since the will does not evince a contrary intention. The majority opinion states: "We have held, in effect, that the technical [primary] meaning will be given to the word if the intent of the testator to use it in a different sense does not appear." While the subsequent discussion does not specifically overrule this rule of our law, in effect it does, and as I understand it, holds that "heirs" when used in a will should be interpreted to mean those who take under the statute of distribution.
Let us assume that the majority opinion has changed our rule of law and that unless the will evinces a contrary intention, "heirs" when found in a will means those who take in the manner and share provided under the statute of distribution, and let us see where the law and the facts of this case take us. Mr. and Mrs. Chase *193
having married after April 20th, 1877, the survivor, under General Statutes, § 5055, except in the cases mentioned in the proviso to this section, was entitled, in the event that the deceased spouse died testate, to the use for life of one third in value of all the real or personal property owned by the deceased spouse at his or her death, "but where there is no will, the survivor shall take such third absolutely, and if there are no children of the decedent or representatives of children, the survivor shall take all of the estate of the decedent absolutely to the extent of two thousand dollars, and one half absolutely of the remainder of said estate. . . . where the wife by will has devised or bequeathed a portion of her property to her surviving husband, such provision shall be taken to be in lieu of the share herein provided for, unless the contrary shall be expressly stated in the will, or shall clearly appear therein; but in any such case the party shall have his or her election whether to accept the provision of such will or take such statutory share, and such election shall be made in writing signed by the party entitled to make the same, and lodged with the court of probate," etc. There is no finding that Mrs. Chase died intestate. There is no finding that she died testate; nor is there a finding as to whether she bequeathed a portion of her property to Mr. Chase, nor, if she did, as to whether he made his election whether to accept the provision of the will or take the statutory share. It follows that Mr. Chase was not, upon the facts reserved, in the event that Mrs. Chase died testate, entitled to an aliquot part of the whole or a part of Mrs. Farrington's estate under the provisions of General Statutes, § 5055. That he was entitled, if Mrs. Chase died testate, in any event, to the life use of one third of her estate during his life, did not make him her heir. "But where by statute the husband or *194
wife takes an absolute interest in the estate of the deceased consort, they come within the technical definition of `heirs,' and if such was the manifest intention of the testator, such term will include a widower, or widow, as the case may be." 40 Cyc. 1463; 2 Alexander's Commentaries on Wills, § 852. An heir is one upon whom the law casts an estate of inheritance immediately upon the death of the testator. Brumley v.Brumley, 28 Ky. Law Rep. 231, 89 S.W. 182, 183;Korn v. Cutler,
There is another reason which seems conclusive why this statute could not be held to be retrospective. My associates hold that Mr. Chase's rights as the heir of his wife came into existence upon the decease of Mrs. Farrington and not at the decease of Mrs. Chase. They reach this conclusion in dependence upon the rule of law that the will is to be read as if executed at the moment of the testator's death. That is the rule to apply were we considering the effect or operation of the will of Mrs. Farrington. Our present purpose is to search for her intention. That is not to be found as of *196
the date of her death in 1925, but at the date of execution of her will. The construction of a will must necessarily be made as of that time and in the light of the circumstances surrounding its making. Her heirs are those in existence when she died. Under this will they took the interest given them by the will. We find the testatrix, in Article Third, specifically refers to the time of the death of either niece as prior to her own death. The residuary clause in Article Fourth does not specifically refer to either niece predeceasing the testatrix, yet when the two articles are construed together there can be no doubt that in both the testatrix was referring to the legatee or legatees in each, predeceasing her. The bequest or devise to the heirs in each instance was a substitutionary one. Every such bequest or devise takes effect upon the death of the prior taker. Schouler on Wills, Vol. 2, 6th Ed. § 1040, says: "Wherever there is a bequest, whether immediate or deferred, to individuals, it is a rule that, be the legacy immediate or by way of remainder, a gift over of the legacy or share of a legatee dying under specified circumstances, shall take effect if the event happens in the testator's lifetime. Thus, if the bequest is to A, but if he die under twenty-one, to B, and A dies, in fact, before the testator, the gift to B takes effect. . . . For the argument that there can be no legacy to any one until the will speaks, and consequently no substitution, cannot here avail." There are, as Schouler points out, exceptions to this rule, but the case before us does not come within them. Alexander's Commentaries on Wills, Vol. 2, § 582, states the rule to be: "In a gift to heirs by way ofsubstitution, the persons are ascertained at the death of him whose heirs they are, and not at the time of distribution." Gifts over upon the death of a beneficiary which are immediate gifts, such as those in articles *197
Third and Fourth, take effect before the death of the testator. Walsh v. McCutcheon,
I would answer: Questions one and two, that Florence W. Lawrence is the sole heir of Grace A. Chase.