65 Conn. 85 | Conn. | 1894
The material facts involved in this reservation maybe stated as follows: Morris Ketehum, late of West-port, by his last will dated August 12th, 1876, among other things, provided in clause fifth that the rest and residue of his property be given and devised to his executors in trust, to hold, manage and invest, “ and to derive a yearly income from my said estate, and to hold and apply the same as follows, viz:—
“1. To use and apply from time to time, and as often as necessary, so much of such yearly income as may be necessary for the expenses of this trust, and the proper maintenance, care and management of my said estate.
“ 2. To pay and make over to my dear wife Margaret, semi-annually, during the term of her natural life, the whole or so much of said annual income after the payment last above directed, as she shall require, to and for her absolute use and benefit.
“ 8. To pay and make over, semi-annually, the residue of such annual income, if any there be, in equal shares, to my children, Kate Corse, Franklin M. Ketehum, Charles J. Ketehum, Edward B. Ketehum, Landon Ketehum, Margaret Parker, and Miller Ketehum, and in case of the death of any of my said children, to pay and make over during the continuance of this trust, to the heirs and legal representatives thereof, the distributive share of said income to which such deceased child would have been entitled hereunder, if living, such heirs and representatives taking by way of representation and not according to their number.
“Sixth. As soon as may be after the death of the last survivor of my said wife and children, I direct said trustees to*87 make over and convey my residuary estate in equal shares to the heirs and legal representatives of my said children, such heirs and representatives taking by way of representation and not according to their number.”
In the seventh clause the testator stated that he had advanced to each of his children sums of money varying in amounts, and that certain of them were devisees of special lands, under the will of his wife Margaret; that “to the end of an equitable distribution ” of the residuary estate, these amounts should be charged them, adding: “I direct my said trustees in making final distribution of my residuary estate in equal shares as hereinbefore provided, to reckon as part of such estate, the total amount of the advancements as above declared and to reckon as part of the respective distributive shares of my estate, the advancements above charged to my said children respectively.” The nest clause of the will is as follows:—
“ Eighth. I hereby empower my said children to dispose by last will and testament of the distributive share of my residuary estate, to which his or her heirs and legal representatives would otherwise become entitled hereunder, and I direct my said trustees, as far as they lawfully may, to convey and make over such distributive share, in accordance with the will of such testator, provided such will shall have been regularly proved, and knowledge thereof shall have been given said trustees within the period of one year after the death of such testator.”
The testator died in 1880, leaving surviving his wife Margaret, who died September lltli, 1893. He also left surviving all his children named in the will. Of these children, Charles J. and Miller have since died intestate, each leaving a widow and children. The rest survive. Franklin M. has never married. The others have married and have issue. During the life of the wife of the testator the trustees paid over to her all the income of the estate conveyed by said will, and at her death the value of the residuaiy estate was, and is, substantially one hundred and fifty thousand dollars.
The questions propounded relate to the validity and effect
“1. Is the provision in said subdivision third of said fifth ■ article, which says that in case of the death of any of said children, said trustees are to pay and make over, during the continuance of the trust, to the heirs and legal representatives thereof, the distributive share of said income to which said deceased child would have been entitled thereunder, if living, such heirs and representatives taking by way of representation, and not according to their number, valid, or is the same void, as in violation of the statute of perpetuities?
“ 2. Is the provision of the sixth article of the will, which directs the trustees, upon the death of the last survivor of the wife and children of said testator, to make over and convey the residuary estate in equal shares to the heirs and legal representatives of such child, valid, or is the same void as in violation of the statute of perpetuities?
“ S. If said provisions of said will, either in the third subdivision of the fifth article of the will, or in the sixth article of the will, in favor of the heirs and legal representatives of any child or children of the testator, are invalid, what, then, is the effect of such invalidity upon the provisions of said third subdivision of the fifth article, directing the payment of the semi-annual income in equal shares to the children of the testator ?
“ 4. Are any of the provisions of the will which were designed to take effect upon the death of the widow of the testator, valid ?
“ 5. If any of said provisions of said will are invalid for any reason, to whom does the estate, or trust estate, created by any of such provisions, go, and of right belong?”
In order to answer the first and second of the above questions, it is necessary to determine what the testator intended by the expression “heirs and legal representatives thereof,” as applied to a child dying during the continuance of the trust. In pursuing this inquiry the context should be taken into consideration. Such “ heirs and legal representatives,”
It may be suggested that by the language used in the fifth clause, “ in case of the death of any of my said children,” the testator meant in case of the event of their dying within
We are thus brought to the remaining questions as to the effect of such invalidity upon the other provisions of the will, and in the determination of this inquiry the general purpose and intent of the testator, if the same can be ascertained, should be regarded, and as far as possible, in conformity to legal rules and principles, effectuated. Fortunately such general intent seems clear. So far as the residuary estate — alone under consideration — is concerned, the cardinal thought was the best, fairest, and most certain provision for the natural objects of his bounty ; his “ dear wife Margaret,” and his children. For his wife he first provided, in a clause under which she could, and in fact did, receive the entire income of the residuary estate during her life. No question therefore arises concerning the disposition of any such income accruing while she lived and not required by her.
For his children he next provided -by provisions, which, while they extended the trust created after the death of the wife, and until that of the last survivor, gave to them the entire beneficial use and enjoyment of such property, at least to the utmost limit to which it could have been imagined that it was possible to do, consistent with the continuance and validity of the trust. In the first place the entire
In view of ail these provisions, whatever may have been the purpose of the testator in providing for the continuance of the trust after the decease of his wife — which purpose it is perhaps not difficult to infer — -it seems evident, that — since by reason of the invalidity of the provisions which we have held to violate the statute of perpetuities, no other persons than the children of the testator can take beneficially, or as purchasers, any interest in this residuary estate under the will — there can be no justification in holding that the trust continues as to any portion of such estate as long as it may do so without violating such statute ; that is, until the time specified in the will, the death of the last survivor of the wife and children, provided results would necessarily follow from such continuance, coupled with the invalidity of the ultimate provisions, which the testator could not have contemplated, and which would offend his general purpose of equality and “ equitable distribution.” Would such results follow therefrom ? It seems to us that they would. Two of the testator’s children have already died intestate. Four more will die before the seventh or “last survivor.” Since
The Superior Court is advised:—
First. That the provisions in subdivision third of clause fifth, and also in the sixth clause, of the will of Morris Ketchum, in reference to heirs and legal representatives of
Second. That the trust created ceased to be valid and determined upon the death of the wife of the testator, and that the entire residuary estate should be distributed as being intestate estate of the said Morris Ketchum, charged with and subject to a valid trust estate during the life of his wife, which has now determined by her death. That in making such distribution the provisions of clause seventh of the will, in reference to charges and advancements, should be regarded and followed
In this opinion the other judges concurred.