23 A.2d 142 | Conn. | 1941
Katherine A. Stanley of New Britain died on June 26, 1927, leaving a will, the construction of a portion of which is sought in this action. The provisions material to the issue before us are as follows:
"16. All the rest, residue and remainder of my estate, both real and personal and wherever situate, I direct my executors hereinafter named to divide into two equal parts, and one of said equal parts I give, devise and bequeath to Alix W. Stanley, of New Britain, Connecticut, to be his absolutely, and the other equal part I give, devise and bequeath to The New Britain Trust Company, of New Britain, Connecticut, and Alix W. Stanley of said New Britain, in trust, however, for the following uses and purposes: to hold, manage, invest and reinvest the same during the natural lives of Mary Peck Stanley, of New Britain, Connecticut, and Isabel Stanley, of said New Britain, and the survivor of them, and to pay over one-quarter of the net income to or for the benefit of the said Mary Peck Stanley during her lifetime, and to pay over one-quarter of the net income to or for the benefit of the said Isabel Stanley during her lifetime, and to pay over the balance of the net income to or for the benefit of the children of my deceased brother, Walter H. Stanley, including his daughter Isabel Stanley and the issue of any deceased child per stirpes, to be divided equally *389 among them, and at the decease of the survivor of said Mary Peck Stanley and Isabel Stanley, I direct that the balance of said trust fund be divided equally among the children of said Walter H. Stanley, including the issue of any deceased child per stirpes. . . .
"17. In case any legatee or devisee herein named, including residuary legatees and devisees, (except those taking under the trust fund created in Paragraph 16 of this will) should not be living at the time of my decease, then I give, devise and bequeath the property he or she would have received if living to his or her heirs if said legatee or devisee died intestate, but if such legatee died leaving a will, then I give, devise and bequeath such property to the persons or corporations who would have taken under such will if said property were part of the estate of such deceased legatee."
When Miss Stanley died she was survived by the following persons: Alix W. Stanley; Mary Peck Stanley, the widow of a brother of the testatrix, Walter H. Stanley; Isabel Stanley, a daughter of Walter H. Stanley; three sons of Walter H. Stanley; five children of Theodore Stanley, a son of Walter H. Stanley who predeceased the testatrix, including Mrs. Katherine Stanley Wells; and descendants of some of these persons. Mary Peck Stanley subsequently died and an action was brought in which we were asked to construe the portions of the will now before us with reference to certain questions which then arose. Stanley v. Stanley,
One of the latter, Mrs. Katherine Stanley Wells, died in 1939, leaving surviving her a husband and two sons; and one of the sons of Walter H. Stanley, Mortimer D. Stanley, has also died, leaving a widow and three children. Because of these deaths, other questions as to the meaning and effect of the portion of the will in question have arisen, which are now presented to us. All living persons who might be affected by our decision are parties to the action, and the trial court appointed a guardian ad litem to represent unborn and undetermined persons who might subsequently become interested, although when the court acted the statute authorizing such an appointment in a case of the nature of the one before us had not been enacted. General Statutes, Sup. 1941, 688f.
The immediate question which obviously confronts the trustees is to whom, in future distributions of the income, they shall pay the shares heretofore paid to Mrs. Wells and Mortimer Stanley, now that they are dead. That inquiry involves the question whether those who became entitled to share in the income immediately after the testatrix' death took a vested alienable and transmissible right to receive the income until the termination of the trust, or, if any of them died during the existence of the trust, their right to receive it terminated and their issue became entitled *391 to share in the income as legatees under the will. The question is one immediately involved in the present administration of the trust but there is a possibility that unborn persons may have an interest in a determination of the rights involved in our answer. We are also asked to give advice as to the persons to whom the principal should be distributed on the death of Isabel Stanley, and the same possibility exists here, but there is the added consideration that the time to make such a distribution has not yet arrived.
The plaintiff asks us to hold that our decision will be binding upon persons hereafter born because they are virtually represented by living persons who are parties to the action and because a guardian ad litem has been appointed for unborn persons who might have an interest in the questions determined. We have on occasion determined the construction of a will though persons subsequently born might have an interest; Conn. App. Proc., 128; but we have never held that such persons were concluded by our decision. None of the parties to this action are contesting the claim made by the plaintiff that our decision would be binding upon unborn persons and we are deprived of the aid which would be afforded by an argument against that claim. The case before us does not suggest limitations which ought to be placed upon the application of such a principle. See Hansberry v. Lee,
Where there is a need to decide as to present rights between living persons, the determination of those rights need not be postponed because later other persons may be born who would be in a position to raise questions necessarily involved in the decision. Hill v. Wright,
The will was drawn in New York by a New York attorney, and the claim is made that it should be construed according to the law of New York. Ordinarily rights in personal property created by a will are determined by the law of the testator's domicil at his death. Gillette v. Stewart,
The principle from the New York decisions which is relied upon is that "Where there is no gift but by a direction to executors or trustees to pay or divide, and to *394
pay at a future time, the vesting in the beneficiary will not take place until that time arrives." Warner v. Durant,
The children of Walter H. Stanley who survived the testatrix and the issue of his son who predeceased her were to receive a portion of the income from the time of her death. That right vested in them at that time. The claim made in behalf of a later vesting in the issue amounts to this, that the right of each of the beneficiaries which then vested was limited to his or her life and that at his or her death, other rights came into being. This would be to read into the provision a defeasance clause in the nature of a condition subsequent. "The law favors the early vesting of estates, prefers the first to the second taker, and looks with disfavor upon defeasance conditions." Meriden Trust Safe Deposit Co. v. Squire,
With reference to the questions concerning the distribution of the fund at the termination of the trust, there can be no doubt that the children of Walter H. Stanley living at the death of the testatrix and the children of his son who predeceased her took at her death a vested transmissible and alienable estate. Bridgeport City Trust Co. v. Shaw,
To the first, third and fifth questions, asking as to the rights in the income of the estate, we answer that at the death of the testatrix the children of Walter H. Stanley then living and the children of his son Theodore who was then deceased took a vested interest in the income of the estate which was limited only by the expiration of the trust and was an alienable and transmissible estate. To the sixth, eighth and tenth questions, asking as to the persons entitled to receive the principal at the termination of the trust, we answer that the right to receive it vested at the death of the testatrix in the same persons except Isabel Stanley, who took no interest in it, as a transmissible and