66 Conn. 401 | Conn. | 1895
Charles E. Dann, the testator, died in 1876, leaving a widow, and three children. His will gave the widow a life estate in his homestead and the furniture therein, and then proceeded as follows:—
“ At her death the property, the use of which is so given and bequeathed to my wife, I give, devise and bequeath to my children, George L. Dann, Charles S. Dann and Phebe Jane Dann, to be equally divided between them. I also give and bequeath to my wife, Mary Jane Dann, the use and improvement of the one-third of the residue of my estate during her lifetime — the same to become at her death the absolute estate of my said children — to be equally divided between them.
“ Third. All the rest and residue of my estate — real, personal and mixed — wherever situate — I give, devise and bequeath to my said three children to be equally divided between them share and share alike.
“Fourth. The portion of my estate so hereinbefore given, devised and bequeathed to my son George L. Dann, is to be held by my executors, whom I hereby appoint as trustees for that purpose. I give, devise and bequeath to them as such trustees and to the survivor of them, such portion — to be held by said trustees or the survivor of them in trust for the use and benefit of the said George L. Dann and his family*404 until the said George L. Dann shall discharge his present liabilities by payment, compromise or otherwise — when the said trustees are hereby authorized, empowered and directed to transfer and convey to the said George L. Dann all of such portion as shall then be remaining in their hands or possession or in the hands and possession of either of them.
“ Fifth. It is my will and I hereby order and direct that if my said son Charles S. Dann, or my daughter Phebe Jane Dann, should die without issue — the portion or portions so hereinbefore given, devised and bequeathed to them or to either of them so dying without issue, shall go to the children of said George L. Dann to be their own absolutely.”
George L. Dann was married prior to the date of the will, and was living at the testator’s decease, with a wife and children.
It is made a question in the case whether the fourth article in the will is not void as creating a perpetuity.
It does not violate the common law rule against perpetuities, for the trust established could not endure beyond the life of George L. Dann. It was to be for the use of him “ and his family,” until he should discharge certain specified liabilities, upon which event the trustees were to convey to him whatever might then remain in their hands. He was the primary object of the testator’s bounty, and the word “ family,” as thus used, must be understood to mean the family of which he was and remained the head. Smith v. Wildman, 37 Conn., 384. By his death it would be dissolved, and the surviving members would have no further interest in the fund.
Nor is the fourth article in contravention of our statute against perpetuities, General Statutes, § 2952, on the ground that the “ family ” to be benefited might by possibility comprehend one who was neither a person in being at the death of the testator, nor the child of such a person, because George L. Dann might marry such an one for his second wife, in case of the decease of the wife who was living when the will was made and the testator died. It is true that such an event is not impossible, and that, should it occur, the second wife
It follows that the ultimate and absolute title to a third part of the testator’s residuary estate, including the remainder on the determination of the life estate given to his widow, became vested as soon as the will took effect, in George L. Dann in fee-simple, subject only to the terms of the trust. He was adjudicated an insolvent debtor by the Probate
It does not appear upon the record whether George L. Dann has ever discharged what the testator described as “his present liabilities.” These words must be taken to refer to his liabilities existing at the date of the will, rather than to those which might exist at the date of the testator’s decease. It is an equivalent expression to “his liabilities existing at the present time.” The testator was evidently-referring to an indebtedness which he then knew to exist; not to a further indebtedness in which his son might by possibility become thereafter involved. So long as any of the indebtedness which he described exists, and so long only, the possession of George’s portion must remain in the trustee under the will. Should such indebtedness be discharged, either by George L. Dann or the trustee in insolvency, the title of the latter to the fund would immediately become absolute.
These provisions of the will were valid, whether designed to induce George L. Dann to effect a speedy settlement with his creditors, or to secure, as against them, a means of support for him and his family. The testator’s whole estate amounted to about $18,000 in value. He was under no obligation to provide for his son’s debts, and he could lawfully prefer the latter’s family to his creditors. The trust for the different members of this family is an entire and inseparable one, and the fund was but a moderate provision for their support. The debts of the father could in no event he satisfied out of what was left for the support of his wife and children, and the courts will not undertake to sever his portion from theirs. Tolland County Insurance Co. v. Underwood,, 50 Conn., 493, 496.
Should George L. Dann survive his wife and children, and he at any time living without a family about him to constitute a household, the trust, as regards the income of his portion, would during such time become so far a naked one that, unless it has been protected by the will against his creditors, it would be subject to their demands. Johnson v.
The provision that if either Charles S. Dann or Phebe J. Dann “should die without issue,” his or her share should go to the children of George absolutely, created an estate tail by implication. Turrill v. Northrop, 51 Conn., 33.
The old English rule was that a limitation over, if the first devisee should die without issue, created an estate tail by implication only if an indefinite failure of issue was intended. That such was the testator’s intention was, however, presumed, if the first devise were made either in fee, or fox-life, or generally, without any particular limit as to its duration. Machell v. Weeding, 8 Sim., 4. The courts of this State, while adopting the same rule, have not admitted the existence of the presumption upon which it was based by English law. On the contrary, they have always construed the words “ dying without issue,” if not otherwise explained by the context, as referring to a dying without leaving issue living at the time of such death. Hudson v. Wadsworth, 8 Conn., 348, 360. This difference between the views of the English courts and those of Connecticut is, no doubt, attributable to the effect of an ancient principle in our jurisprudence, confirmed by the statute of 1784 (General Statutes, § 2952), that an estate tail becomes aix estate in fee-simple in the issue of the first donee in tail. 1 Swift’s Dig., *479. Under this rule, a strict limitation in tail, to endure fx-om generation to generation, was impossible, and an attempt to constitute it was therefore not to be presumed.
There is no difference between the common law of England and that pf this State in reference to the creation of a remaindexu after an estate tail in land. An estate tail is a particular estate, which, when carved out of an estate in fee-simple, leaves something remaining, which is a proper subject of immediate disposition. Hall v. Priest, 6 Gray, 18, 20. A devise in tail might be followed, at common law, by a devise in remainder-, contingent upoxx the death of the de
Our statute of perpetuities avoids a devise to the heirs of the body of any person in being; since such heirs at his decease may not be his children, and children only are the “immediate issue or descendants” intended by that law. Leake v. Watson, 60 Conn., 498. For the same reason, it would avoid a limitation over, dependent upon such an estate. But the creation of an estate tail does not invest the issue of the donee in tail, though such issue may be in being, with any interest in the land. If they ever take, it will be by inheritance from their ancestor, and not by purchase under the will. Goodman v. Russ, 14 Conn., 210, 216. This title by descent, upon the death of the ancestor, is enlarged into afeesimple, by our statute : but not until then. De Mill v. Lockwood, 3 Blatchf., 56, 63; Comstock v. Gay, 51 Conn., 45. It differs, therefore, radically from a conditional estate in fee, with an executory devise over in fee-simple, in case of the failure of issue of the first devisee. That, under our law, which recognizes no right in the tenant in tail to bar the entail, by common recovery or otherwise, would present a plain case of a perpetuity; since the first estate devised would be determinable by an indefinite failure of issue, occurring, perhaps, after the lapse of many successive generations of those not in being at the death of the testator. 2 Bedfield on Wills, *569.
The changes in English law by modern statutes, particularly the Wills Act of 1 Viet., Chap. 26, have been such that the more recent decisions of their courts can throw little light on any question affecting estates tail in Connecticut. In England the creation of such estates by implication is now practically precluded, and a limitation over upon the death of the first taker without issue, ordinarily gives him an estate in fee-simple, subject to an executory devise, should he die leaving no surviving issue. 2 Jam. on Wills (5th Am. Ed.), *144.
A limitation over, “ in case of ” or “ in the event of ” the death of a devisee without issue, or even “if he die without issue,” has often been construed to refer only to the occurrence of the death under such conditions before that of the testator. Coe v. James, 54 Conn., 511, 513. But the question is always one to be determined in view of all the provisions of the particular will under consideration, and the circumstances surrounding the testator. Had Charles S. Dann died without leaving surviving children, before the testator, and had that been the contingency upon which his portion was to go to George’s children, the effect of the will would have been to leave his sister Phebe with but one third of the
Charles S. Dann and Phebe J. Dann each married after the testator’s decease, and had issue born of the marriage. The former was adjudged a bankrupt under the laws of the United States, in 1878, and all his estate was thereupon conveyed to an assignee in bankruptcy, “ including all the property of whatsoever kind, of which the said bankrupt was possessed, or in which he was interested, or which he was entitled to have.” His mother was then living, but died two years later. His third of that part of the estate, in which she had no interest, had been distributed to a trustee for his benefit prior to his bankruptcy. His interest in that part of the estate in which she had an interest was duly sold and conveyed, in 1880, by his assignee in bankruptcy, his wife being the purchaser. In 1886 he died, leaving surviving issue.
Charles S. Dann, being a tenant in tail, could convey the entailed estate, but could at most grant nothing more than a base fee, determinable upon his decease by the entry of the issue in tail. Whiting v. Whiting, 4 Conn., 179. His wife by her purchase acquired a right to the enjoyment, during such period as might elapse between his mother’s decease and his own, of his third of so much of his father’s estate as was left by the latter to his widow for her life.
Upon his decease, in 1886, his portion of his father’s estate, both real and personal, including that in which the latter's widow had an estate for life, and an interest in which after-wards passed to his own wife, became an absolute estate in fee-simple in his surviving issue. General Statutes, § 2952. His estate, under our law, was an estate tail, both in the real and personal estate. Hudson v. Wadsworth, 8 Conn., 348, 362. All the real estate left by his father has been sold, either by authority of the General Assembly, or by order of the Court of Probate. The proceeds of such sales in the hands of the administrator are to be treated as real estate, in determining the rights of the parties entitled to share in them.
The widow was not entitled to any statutory share, if her husband died intestate, in his portion of the personal estate left by his father, for upon his death his interest in that became absolutely extinguished. Every limitation over by way of ah executory devise is inconsistent with any right on the part of the first taker to alienate or incumber the property, as against those who may be entitled to succeed upon the termination of his estate.
The principal of the portion of the testator’s estate (both real and personal) which he left to Phebe J. Dann, was vested in her as a tenant in tail, and cannot be taken by her creditors. If she die leaving surviving issue, it will belong to them; if she die leaving no surviving issue, it goes to the children of George L. Dann.
One of her creditors, Henry Stein, has put his claims into judgments, and is seeking to secure them by process of foreign attachment, served on the administrator with the will annexed of the estate of Charles E. Dann. The principal of her portion cannot by this or any other method be appropriated to the payment of her debts. It is unalterably limited^ to descend to the heirs of her body, or, on failure of such issue, to go to the children of her brother.
The Superior Court is advised that (1) the fourth clause of the will of Charles E. Dann is valid in all respects; (2) the interest of George L. Dann, under said clause, and also under the second clause, was an absolute estate, subject to a trust for the use and benefit of him and his family until the discharge of all the liabilities which existed against him at the date of the will; (3) the “ family ” thus described
In this opinion the other judges concurred.