119 A. 223 | Conn. | 1922
The will of John H. Beecher gave the residue of his estate to Roger S. Newell in trust for the following uses: 1. To pay to his wife, Mary P., the income from one third for her life, and at her decease to pay this income to his adopted son, Aymer, for his life. No disposition of the remainder of this one third was specifically made by the testator. 2. To pay to his brother, Joseph, the income of one third for his life, and upon his decease to pay to his son Henry C., the income from this one third for his life. Upon the decease of both Joseph and Henry C., to transfer this one third to Chauncey, the son of Henry C., to be his absolute property. This one third was thus fully disposed of. 3. To take entire charge, as set forth in paragraph six of the third clause of the will, of the remaining one third and use the income at the discretion of the trustee for the welfare of John Henry W. Beecher, nephew of the testator, until, as the will provides, he "shall arrive at the age of forty years, at which time the principal of said fund shall be paid and delivered to my said nephew." No provision is made for the contingency of John Henry dying before arriving at the age of forty years. The fourth clause of the will is as follows: "All the rest and remainder of my estate I give, devise and bequeath to such of my nephews as shall be living at the time of my decease. If under *266 the terms of this paragraph my said nephew, John Henry W. Beecher, shall acquire any of my property, I devise and bequeath the same to my said trustee, Roger S. Newell, upon the terms and conditions as above set forth, in the trust established for said John Henry W. Beecher."
Thereafter the testator executed a codicil in which he cancelled paragraph six of the "third" item of his will, which covers the provision above referred to giving the use of one third to John Henry for his life and the principal thereof upon his arriving at the age of forty years, and makes certain provisions in lieu of paragraph six. These comprise certain small bequests from this one third, and in addition to the provision in the will for his wife, the testator directs his trustee to pay to her during her life the income from $10,000. No specific disposition is made of the remainder of this $10,000. The codicil also directs the trustee to pay to the Congregational Church of Wolcott, Connecticut, from this one third, the income from $1,000, for the care and maintenance of its parish house, and continues: "In the event that the use of said Parish House in connection with the work of a Congregational Ecclesiastical Society in Wolcott be discontinued, this bequest shall end and terminate, and the principal of said trust fund I hereby give and bequeath to my nephews mentioned elsewhere in my will, to be divided equally between them." The codicil then provides that "the remainder of said one-third I give, devise and bequeath to my trustee, to take entire charge, management and control thereof and use the income as shall be by my said trustee deemed most advisable for the welfare, comfort and advancement of my nephew John Henry W. Beecher, until my said nephew shall arrive at the age of forty years, at which time the principal of said fund shall be paid and delivered to my *267 said nephew." The codicil further provides that if John Henry "shall grow up to habits of indolence or vice, or in the opinion of my trustee should be incapable or unworthy of the benefits to which he would be entitled under this will, I direct that no part of my property or the income thereof shall be paid or delivered to him, except that my trustee shall have the right in his judgment, if by him deemed necessary, to pay to my said nephew such portion of the income from said fund as shall by my said trustee be deemed necessary for the support of my said nephew. If in the opinion of my said trustee the habits and character of my said nephew are such that he is not entitled to benefit under this will, the decision of the trustee on such matters shall be final and conclusive. . . . In the event that my said nephew should die before arriving at the age of forty years, or in the event of the decision of my said trustee that my said nephew is unworthy to receive property under this will, the estate herein given for his benefit shall revert to and become a part of the residuum of my estate, of which disposition is made in my original will." The codicil further republished and confirmed the will except as altered by it.
The will as written, apart from the codicil, is entirely clear in its testamentary intent and does not require for its construction the aid of the artificial rules of testamentary construction. The remainder interest in part one, of the rest, residue and remainder, after the life use of the wife of the testator, Mary P., and the life use of the testator's adopted son, was undisposed of, and hence went into the general devise and bequest of the rest and remainder of his estate contained in the fourth paragraph of the will. The rest, residue and remainder interest in the third part of the residue, contained in paragraph six of the third clause of the will, of which the testator's nephew John Henry W. Beecher *268
had the use until he arrived at the age of forty years, became a part of the "rest and remainder" of his estate, as provided in the fourth clause, if the nephew died before arriving at the age of forty years, and as this contingency happened, it became a part of this "rest and remainder" which passed under the fourth clause to the testator's two nephews living at his decease, Henry C. Beecher and John Henry W. Beecher. The gift to the nephews under the fourth clause was a class gift, and upon the death of either nephew in the lifetime of the testator his interest under this clause passed to the surviving nephew. The will disposed of the entire estate, and the disposition of the "rest and remainder" to the nephews living at his death definitely fixed the members of the class as of that date. The postponement of John Henry's enjoyment of the principal of the third part, did not prevent his interest in this part from vesting upon the death of the testator. Each nephew took under the residuary clause as a member of a class, upon the testator's death, a vested interest by way of a contingent remainder. John Henry's interest was a vested remainder subject to the condition subsequent that he might be divested by his decease before arriving at the age of forty years. Johnson
v. Edmond,
So far, the parties in interest do not appear to be of any substantially divergent view. The differences arise out of the construction of the codicil, and of the will as affected by the codicil. The testator expressly ratifies in the codicil the first five paragraphs of his will, which dispose completely of the second third of the residue as contained in paragraphs three, four, and five of the third clause of the will, and of the use for two lives in being of the first part as contained in paragraphs one and two of the third clause, leaving the remainder of this part undisposed of. He recognizes the existence of the residuary clause of the will in the twelfth clause of the codicil, by bequeathing to his nephews mentioned therein the bequest to the Congregational Society for a parish house in the event that the use of the parish house in connection with the work of the Society be discontinued, and in the last paragraph of the thirteenth clause, by providing that the share given to his nephew John Henry, in the codicil, should become a part of the residuum in case his nephew should die before arriving at forty years of age, or should be found by the testator's trustee unworthy to receive the property therein given him. Not only does the testator make it clear that he had in mind the residuary clause of the will, but also that both nephews should take thereunder. Since this is so, the testator's intention not to leave the remainder of part one undisposed of, and not to give the remainder disposed of through the residuary clause wholly to his nephew Henry C., is clearly manifest. The testator must be presumed to have intended by the residuary clause of his will to dispose of every part of his estate otherwise undisposed *270
of in his will. He must also be presumed to have intended by the codicil to have disposed of the third part. "The fact that the will contains a general residuary clause shows an intent to avoid partial intestacy."Hartford Trust Co. v. Wolcott,
The argument in opposition to the representative of John Henry, that the estate disposed of in the codicil did not vest in John Henry until he arrived at the age of forty, is, as we have stated, unsound. One may have the use for life of an estate, and take the fee as an heir at law at the termination of the life estate.Rand v. Butler,
We have considered with care the several claims of the parties in interest which we have not already discussed, but were unable to agree with them or to find anything in them which would prevent the intention of the testator, as we have found it to be, from taking effect. The discussion of these claims would prolong the opinion, and to little purpose. The fifth question of paragraph fifteen of the complaint, as to the bequest to the Congregational Ecclesiastical Society in Wolcott, is not contained in the questions submitted in the reservation. Had it been included among them we must have held that the question was prematurely before the court.
The Superior Court is advised as to the questions under this reservation in accordance with the foregoing opinion, as follows: —
1. One half of the property given by the codicil to John Henry W. Beecher upon named contingencies, goes to Henry C. Beecher and one half to The Bristol Trust Company, administrator of John Henry W. Beecher. *274
2. One half of the property the use of which is given to Mary P. Beecher for life and then to Aymer J. Lutz Beecher for life, goes to Henry C. Beecher and one half to The Bristol Trust Company, as said administrator.
3. One half of the $10,000 goes to Henry C. Beecher and one half to The Bristol Trust Company as said administrator.
4. The income which accrued on the property given by the codicil to John Henry W. Beecher, and was payable to the trustee of the testator for the benefit of John Henry W. Beecher but not paid over to him in his lifetime, is to be paid to The Bristol Trust Company, as said administrator.
5. The income which has accrued on the said property since the death of John Henry W. Beecher is to be paid, one half to The Bristol Trust Company as said administrator and one half to Henry C. Beecher.
No costs will be taxed in this court.
In this opinion the other judges concurred.