Security Co. v. Snow, 70 Conn. 288

Security Co. v. Snow

70 Conn. 288 | Conn. | 1898

Baldwin, J.

The main scheme of the will in question was to make suitable provision for the testator’s widow, and then divide his residuary estate equally between his three children; the shares of his daughters, in the event of their marriage, to be held to their sole and separate use. The codicil was made for the single object of placing the share of Alice under the control of his wife, as trustee for her benefit, with large discretionary powers. Mrs. Snow was directed to páy and convey the trust estate to Mrs. Bur-rill from time to time, as she, the trustee, might deem for the interest and welfare of Mrs. Burrill; and any portion of the estate “ or the net income thereof ” not so paid and de*292livered to her during her life, was at her decease to go to her “ lawful heirs.”

The trustee was not required to pay over the annual income from the trust estate to Mrs. Burrill during her life. The trust created was such that it might be terminated at any time during her life, at the discretion of the trustee. Whether it should endure for a few months or for many years was to be determined by Mrs. Snow, in view of what she might consider to be the true interest of Mrs. Burrill. The testator apparently thought it uncertain whether that would be promoted by her having in her own control either the entire principal or the entire income. He contemplated it as possible that part of the income might be withheld from her during her life; and made provision for that contingency, by the same gift in remainder, which he intended'to carry to her lawful heirs any of the principal that might, at her decease, remain in the hands of the trustees.

The death of Mrs. Snow, before making over to Mrs. Bur-rill any considerable portion of the estate, rendered it thenceforth impossible to promote his daughter’s interest and welfare in the manner contemplated by the testator. The discretionary powers which he gave to his wife for that purpose were purely personal and ended with, her life. If the trust is to continue during Mrs. Burrill’s life, there can be no further surrender to her of any portion of the principal, and either all the accruing income must be paid to her, or none. There is no express authority for paying over any of it, and if authority can be implied from the evident purpose of the testator to provide for her proper support, it must be conceded without limits.

The gift in remainder to her “lawful heirs” is void by reason of the statute of perpetuities which was in force when the testator died, under the rule laid down in Leake v. Watson, 60 Conn. 498.

If, then, the decease of Mrs. Snow left it possible to give the second article of the codicil any further effect, it can be only to keep the estate in the custody of the plaintiff during Mrs. Burrill’s life, and give her meanwhile the entire income.. *293This may amount to a greater sum than the testator thought it might he best for her to use under some circumstances, and a less sum than he thought it might be best for her to use under other circumstances. The person on whose judgment of her circumstances he depended for measuring out from time to time what on the whole would best promote her welfare, is no longer in existence. His will, therefore, as expressed in this article, cannot now be carried out, as to the disposition either of the income or principal of the trust estate.

If the plaintiff can retain the fund until the decease of Mrs. Burrill, it must be under the doctrine of approximation; but this can never be invoked where its application would sacrifice the main object of a testator to one of his incidental purposes. Hayden v. Conn. Hospital, 64 Conn. 320, 324. The main object of this article of the codicil was to benefit Mrs. Burrill by giving her whatever it was best for her to receive, both of the principal and income, of a share in his estate equal to that left to his other children. The provision for her heirs was inserted in view of an incidental contingency. Nothing was to come to them which it might be deemed judicious to turn over to her. During the life of Mrs. Snow the trust might have been given full effect, but only by a transfer of the entire estate to Mrs. Burrill. That not having been done, it is no longer susceptible either of complete execution, or of partial execution in such a way as to satisfy the testator’s design.

The first article of the codicil expressly revokes the disposition made in the will in favor of Mrs. Burrill, but it is apparent that this was done not to diminish her equal share in the estate, but to transfer it to a trustee so as to secure it more effectually for her benefit. I give to my wife in trust, says the testator, “ any and all property and estate which was given, bequeathed and devised to my said daughter in and by virtue of said last will and testament.” It being his manifest intention to revoke the provision in the will only for this purpose, so far as the purpose fails of effect, the revocation must fall with it. Both articles of the codicil must *294be taken together to ascertain his true meaning. It was no part of this that he should die intestate in respect to the third of his re’siduary estate with which alone he was dealing. The revocation of his former provision for Mrs. Burrill was indissolubly coupled with the creation of the substituted provision. It may be given effect, so far as the substitution is valid, but no farther, because so only can the plain purpose of the testator be attained, and the mutual dependence of the two articles of the codicil preserved. The whole instrument was a single testamentary act, and must be read as if the testator had expressly declared that he revoked the gift made to Alice in his will simply in order to put it in a different form. Rudy v. Ulrich, 69 Pa. St. 177, 183; Stickney v. Hammond, 138 Mass. 116, 120; Powell v. Powell, L. R. 1 P. & D. 209.

The rule of construction upon which we proceed is analogous to that governing a revocation which is grounded on a state of facts which proves not to exist. It falls when its foundation falls. Dunham v. Averill, 45 Conn. 62.

The case of James v. Marvin, 3 Conn. 576, which holds that a revoking clause in a second will destroys the first, whether the second ever becomes effective as a testamentary act or not, was decided before our present statute of wills was enacted, and is therefore inapplicable to the question before tis. Peck’s Appeal, 50 Conn. 562.

The provision made in the will for Mrs. Burrill stands, therefore, unrevoked, except so far as her interest during the life of Mrs. Snow was placed under the latter’s control. The 'trust was separable, and to that extent valid. Wheeler v. Fellowes, 52 Conn. 238, 247; Morris v. Bolles, 65 id. 45; Ketchum v. Corse, ibid. 85. Mrs. Snow could withhold the estate from her in whole or part, but the plaintiff has no such power. Mrs. Burrill’s absolute title under the will, which was temporarily abridged or suspended under the second article of the codicil, resumed its original character upon the decease of Mrs. Snow, and the plaintiff holds simply upon a resulting trust in her favor.

The Superior Court is advised that the gift over to the lawful heirs of Alice D. Burrill is void; that the trust ter*295minated at the decease of the original trustee ; that the discretionary power given to that trustee cannot be exercised by the plaintiff as her successor; and that Alice D. Burrill became entitled, at the decease of Mrs. Snow, to demand and receive from the plaintiff the whole of the trust estate, to be held by her to her sole and separate use.

In this opinion the other judges concurred.