138 A. 809 | Conn. | 1927
The will of Doctor Bowers does not convey in express terms any estate to the trustees named; none such are legally necessary; they may be implied, if from the whole will may be derived the intention of the testator to create the trust. In this will we find these trustees given complete control of all of the testator's estate except a very insignificant part, and its administration by the trustees specifically provided for up to the time of the final distribution of the estate and the termination of the trust. The terms of the will forbid the entertainment of any doubt of the testator's intention that the trustees were to take, hold and administer the entire residue of his estate until its final distribution. Ryder v. Lyon,
The tenth article, in conjunction with the third, gives to each of the testator's grandchildren an equal share in the residue, and provides that in the event of the decease of any grandchild the children of such grandchild shall take as a class the share of this grandchild. Whether the will vested in the grandchildren a beneficial interest in the residue at the decease of the testator, or at the periods of distribution, will determine whether the gift is an immediate gift to a class and therefore valid, or is a contingent gift and within the rule of perpetuities.
There is, it is true, no express grant or conveyance to these grandchildren; its absence will not, as matter of law, forbid the immediate vesting of such interest.Belfield v. Booth,
The gift was, we think, intended to be to the grandchildren as members of a class, not as individuals; the class "would open to admit other members, as persons answering the class description should" they thereafter, and until the termination of the thirty year period, be born. Hoadley v. Beardsley,
The gift to the grandchildren, vesting in them at the death of the testator as members of a class and the class opening to take in grandchildren born after the death of the testator and before the first distribution, does not violate the rule against perpetuities, since all of the grandchildren will be born within the life of the testator's daughter, Katherine S. Shepard. The gift to these grandchildren as a class is completely separable from the substitutionary gift over to the children of a member of the class who should die. Therefore, though the gift over be invalid, the gift to the grandchild is valid and his estate will be entitled to the share which he would have taken if living. If one of the class cannot take, other members of the class may. If children of a member cannot take, the member may, and his estate will, take the share he would have been entitled to if living.
The provisions of a will, partly legal and partly illegal, will be upheld so far as legal, unless the illegal be "so inextricably blended as to be incapable of separation."Russell v. Hartley,
In Farnam v. Farnam,
The invalidity of the substitutionary gift over in Doctor Bowers' will to any of the children of his grandchildren would not affect the vested interest of the grandchild. It would be transmissible by the grandchild by will, or become a part of his estate by operation of law.
The residue will be divided into as many shares as there are children born to Mrs. Shepard prior to the first distribution, and the share of those living at her decease, or of the estate of any deceased child who dies without children surviving him or her, will not fall within the ban of the rule against perpetuities.
We come then to the question of whether the share of a child or children surviving a deceased grandchild will fall under this ban. There is no gift over in favor of the surviving children of Mrs. Shepard, therefore the share will remain in the deceased child's estate. The share of each grandchild is separable from that of every other grandchild, and similarly the substitutionary gift over to their child or children is separable from a like gift to the child or children of any other grandchild. "The question of remoteness is to be considered with reference to each share separately." Gray, Rule against Perpetuities (3d Ed.) § 391, p. 345; Sumner
v. Westcott,
Our conclusion is that neither the gifts to the grandchildren of the testator, whether born before or after his decease, nor the substitutionary gift over to any one of the children of the three grandchildren living at the decease of the testator but dying before the period set for distribution, will offend the rule against perpetuities for remoteness, but that the substitutionary gift over to the children of any grandchild born after the decease of the testator will offend the rule against perpetuities for remoteness and be invalid, the gift over going to the estate of the grandchild, or to his assigns if alienated prior to his decease.
We take up next whether the trust created by this will is one for accumulation, and if so, what will be its effect upon the disposition of the principal or income of the estate in the trust. There is no direction in the will providing for the accumulation of the income; nor is there any express gift of the accumulated income. There is nothing in the will from which we are required to draw the intention to accumulate. We are asked to infer that this was the intention of the testator from the fact that the appraisal value of his estate was nearly $400,000 and that the income from the invested portion of the estate would greatly exceed the maximum payments which the trustees were required to pay from the income. We cannot assume that the testator's estate at the time he drew his will in November, 1923, nearly three years before *640 his decease, was of this amount or anything like this amount. We must take judicial notice of the fact that many investments in that period have largely increased in market value through increases of stock, or dividends, or other methods. What the condition of Doctor Bowers' estate was in 1923, we cannot know from this record. Whether he obtained much of his property in the period between 1923 and his decease, we do not know. The payments required to be made from the income by the will may have been reasonable and proportionate to the then value of his estate. We cannot substitute speculation for fact and infer an intention upon the part of the testator which he may or may not have held.
In view of this conclusion, we do not consider the question counsel for Mrs. Shepard so strenuously argue, that if the trust be found to be one for accumulation it is void as within the period of the rule against perpetuities. We have a situation where the testator has not provided for the disposition of the income in large part. We cannot hold that it belongs to the grandchildren who ultimately enjoy the principal of the estate and take a vested interest in it from the decease of the testator, for the testator has not so provided. The will makes clear his purpose not to give them any of the income except such as the will provides should come to them through the trustees. If his purpose also was not to accumulate the income in the residue for their benefit, there is only one conclusion open, and that is that the testator omitted provision for the disposition of the income through forgetfulness and therefore the income as it accumulated became intestate estate, and so far as not required to meet the payments under the will and the expenses of the administration of the trust, it should *641 ultimately be paid to the daughter of the testator, Mrs. Shepard, her heirs, executors, administrators and assigns.
In the nine parcels of real estate in Berlin the daughter has the life use, and upon her decease the grandchildren and the survivors of the grandchildren the life use, with power to sell the same with the concurrence of the trustees. The determination whether to give or withhold their concurrence in the sale and to property care for these parcels if the life tenants do not, are the only functions in relation to them required of the trustees, except at the periods of distribution, so long as the life tenants live and properly care for these parcels. Their distribution will accord with the distribution of the rest of the estate. Presumably good judgment will require their sale prior to distribution.
The questions upon which our advice are asked do not include one as to the period of payments to be made by the trustees for the education of these grandchildren. Since the question will be imminent before long, we advise:
The trustees should make the specified payments of $1,000 a year for the education of William B. Shepard provided for in Article Sixth of the will during such period as he may be at college or taking a professional course.
The trustees should make the specified payments of $1,000 a year for the education of each of the granddaughters during the entire period each shall be at a college, or young ladies' seminary, which term includes any private preparatory school. College, as used in this article, includes both the undergraduate, and the graduate and professional departments of a college or university.
The questions asked, so far as we deem necessary,