112 A. 689 | Conn. | 1921
Lead Opinion
The entire decision rests upon the single question whether the term "issue," as used in the seventh clause of this will, includes the adopted child of Eugene F. Gaffey, the son of the testator. The term "issue," in a will, is to be construed as a word of purchase, unless it appears from the context and surrounding circumstances to have been used as one of limitation. Its primary, and therefore presumptive, meaning, when used as a word of purchase, is heirs of the body, and includes descendants in every degree. But when the intention of the testator, as evinced by the context and surrounding circumstances, indicates that he used the word "issue," not in its larger significance, but in its more restricted sense, it will be construed so as to effectuate the testator's intent and to be synonymous with children or grandchildren.Bartlett v. Sears,
In the second clause of his will the testator establishes a trust for the benefit of his son Thomas, practically identical with the trust established in the seventh clause for the benefit of his son Eugene, except that the trust for Thomas provides that upon *67 his death with issue the income of the trust shall be used for the benefit of the "children" of Thomas, whereas the trust for Eugene provides that upon his death with issue the income of the trust shall be used for the benefit of the "issue" of Eugene.
The testator used the term "issue" in the seventh clause in the restricted sense in which he used the term "children" in the second clause. The terms are used interchangeably and should be so construed in these clauses. Duckett's Estate,
Language in a will susceptible of different meanings is to be given that meaning which will most nearly effectuate the testator's intention. The language is to be construed in connection with the entire will and in the light of the circumstances surrounding it which were probably known to the testator.
The meaning in which the testator used the term "issue" or "children" in this clause is not to be found alone in the statute of adoption (§ 4879), but by ascertaining the testator's intention. And one of the factors in reaching this end must be the consideration of the fact that the testator must be assumed to have made his will in the knowledge of the existence of our statute of adoption. "Children," when used in a will, may include adopted as well as natural children, or it may mean natural children. Its meaning in a will is wholly a question of what the testator's intention was. In every case of doubtful construction in a will of the word "children," the law favors ancestral blood by favoring such an interpretation as will permit the testator's estate to pass to his own blood. *68
In making a devise over from his own child to his child's child, there is a presumption that the testator intended a child of his own blood, and did not intend his estate to go to a stranger to his blood. Woodcock'sAppeal,
Search the will as we may, we find nothing to suggest that the testator intended to include the adopted child of Eugene among the children of Eugene. On the contrary, the terms of the will manifest the testator's intention to give to his own blood and to none other. Strangers may not share in his bounty. Aside from the payment of his debts and funeral expenses and a small legacy for the care of his lot in the cemetery, he gives $15,000 in trust for his son Thomas for life with remainder over to his children, but if none survive Thomas he directs that the trust fund be divided equally between his son Herbert and his daughter, Dora, their heirs and assigns. Of the remainder, one third he gives to his son Herbert, one third to his daughter, Dora, and the remaining third he gives in trust to Herbert and Dora for the benefit of his son Eugene with remainder over to his issue, by which was meant children, as we have seen, and in the event of Eugene dying without issue, then to Herbert and Dora, their heirs and assigns. He evinces his preference for his blood by his gifts, and by making his son Herbert and his daughter, Dora, trustees of the trusts provided for in, and executors of, the will.
The plan of the will was to give Herbert and Dora *69 substantially the testator's entire property, in the event that his sons Thomas and Eugene died without children surviving them. And as if to emphasize his preference for his blood, the testator gives the body of these trust funds, upon the death of the cestui quetrusts without children surviving them, to Herbert and Dora, their heirs and assigns.
If Thomas or Eugene could, by adopting a child, divest the interest of Herbert and Dora, they could destroy the testator's entire plan of will. The interest of Herbert and Dora vested on the testator's death, and their interests were alienable and transmissible.Bartram v. Powell,
Is it at all probable that this testator intended to give to Herbert and Dora vested interests of this character, and at the same time placed it in the power of Eugene and Thomas to defeat these interests vested by his own act? He denies to Eugene and Thomas the right to control their trust fund or to dispose of it by will. Is it at all probable that he intended to give to them the power, by the fact of adopting a child or children, to dispose of a part and perhaps the entire trust funds?
The testator exercises his right to dispose of his entire estate, and his will in its entirety makes clear his intention that only the children of his blood and the children of their blood should enjoy his bounty.Russell v. Hartley,
The trust for Eugene is a spendthrift trust, and the trustees have power to give or withhold any or all of the income from Eugene. And this is another circumstance indicating that the testator did not intend to give Eugene the power of disposition of the body of the trust fund when he restricted his power to expend the income for himself.
The testator died in March, 1905. Eugene adopted a child on October 5th, 1917, a few days prior to his decease and over twelve years subsequent to the death of his father, the testator. This is a circumstance of controlling importance. The testator did not know of the adoption. And we think it inconceivable that he intended by his bounty to the children of Eugene to include one who might, by adoption, years after his own death, become a child of Eugene.
The brief for the appellant, the adopted child of Eugene, accepts the testator's intention at the making of his will, as ascertained from the terms of the will read in the light of the surrounding circumstances, as the true guide, but it draws exactly contrary conclusions from those we have drawn. The fundamental difference arises in the assumption by the appellant of the existence of a presumption.
Since the testator is presumed to have known our law of adoption, the brief contends that he is presumed to have used the term "child" in his will, or its equivalent as here used, issue, as including a child by adoption, unless the will or its attendant circumstances show the contrary.
Statutes of adoption are of two classes, the restrictive and the broad class. Our statute (Rev. 1918, § 4879), as it existed when this will was executed and probated (Rev. 1902, § 234), belongs to the broad class. By it the adopted child becomes, by the fact of adoption, the child in name and in law of its parents, with all *71 the reciprocal rights and duties existing between them as between natural child and parent, and with the right of inheritance between parent and child and their relatives, the same as though such adopted child were the natural child of such adopting parent.
If this presumption were ever to arise, it would be out of a statute as broad as ours. But we do not think such a presumption can arise from the mere assumption of knowledge of the law of adoption. The existence of the adoption law, being part of the law at the time the testator executed the will, is one of the facts to be considered among the circumstances and environment surrounding him. The terms of the will, read in the light of the circumstances, are the source of the intention of the testator. This is an inference to be drawn from all the facts; it may not be drawn from the single fact of the existence of a broad law of adoption. The better authority accords with this view.
"Where the grantor or testator is the adopting parent it is reasonable to presume that the adopted child was within the intended bounty of such grantor or testator. But where he is a stranger to the adoption such presumption does not prevail." Wilder v. Butler,
We find the large majority of the authorities hold that the question of the right of a child adopted after the testator's death, and where the testator is a stranger to the adoption, to take under his will is one of intention on his part. And this must appear from the reading of the will in the light of the surrounding circumstances; otherwise the word "children" will be confined to its ordinary meaning, natural children of the blood. Puterbaugh's Estate,
Among the opinions holding the contrary view may be mentioned: Hartwell v. Tefft,
Our conclusion accords with that of the trial court.
There is no error.
In this opinion CASE and BURPEE, Js., concurred.
Dissenting Opinion
Our statute of adoption (§ 4879) declares that when its provisions are complied with, "such child shall thereupon become the legal child of the person by whom it is adopted, and he shall become its legal parent." The appellant is therefore the legal child of Eugene F. Gaffey, and Eugene, before his death, was her legal father. As pointed out in the opinion, the testator evidently uses the word issue in the seventh paragraph as meaning children. Admittedly the children thus referred to as issue are the children of Eugene F. Gaffey at the time of his death. And since the testator is presumed to have known the law and to have made his will with reference to it, I think the word "issue" in the seventh clause includes, in intention and in law, after-adopted as well as after-born children.
In this opinion CURTIS, J., concurs. *73
