167 A. 803 | Conn. | 1933
Meyer W. Koletsky took out three policies of life insurance, two in 1924 and one in 1928 in the Union Central Life Insurance Company, which were in force at his death and in which his wife was originally named beneficiary. All the policies contained a provision giving the insured the option to have the company retain the amount due after his death and pay the interest to the beneficiary, with a right to require that the principal be not withdrawn. A daughter was born to Koletsky on September 17th, 1924. Thereafter on three occasions previous to March 23d 1929, Koletsky filed with the company, as to each policy, a "Certificate of Change of Beneficiary and Election of Settlement Option," in which he provided, in differing ways, that the money should be retained by the company as long as his wife or daughter lived, the interest to be paid to them and at the death of the survivor the principal to be paid to certain designated persons. The third group of certificates, filed on April 21st, 1928, each provided *336 that the company should retain the net sum due on the policy to which it applied and pay the interest thereon in equal monthly instalments to his daughter as long as she lived, and that, if she became entitled to receive payments while a minor, they should be made to a certain bank "as trustee for my said daughter as long as she remains a minor," without further provisions defining the duties of the bank as trustee. On February 21st, 1929, Koletsky's wife brought an action of divorce against him, in which a decree was later entered in her favor and custody of the daughter awarded to her, with certain provisions for payments to be made by Koletsky for the daughter's support or benefit.
On or about March 1st, 1929, Koletsky consulted an agent of the insurance company with reference to changing the provisions he had made for the disposition of the sums which would become due under the policies at his death and on March 1st, 1929, the agent wrote the company asking it to prepare new certificates accordingly. In this letter it was stated that Koletsky desired the interest payments to be made payable to a certain bank, "as trustee for the insured's daughter, Pauline Marie Koletsky, as long as she lives," but nothing was stated as to the terms on which the bank was to hold or pay out the interest received by it. The certificates requested were prepared, submitted to Koletsky and returned to the company for certain minor changes, including the substitution of the plaintiff as trustee in place of the bank. On March 23d 1929, Koletsky executed the new certificates and they were filed with the company. They directed that the "net sum" payable under each policy should be retained by the company and the interest thereon be paid in equal monthly instalments to the daughter as long as she lived and they also contained provisions *337 for the disposition of the fund at her death as follows: If she died before the testator, or on her death if she died after him, "said net sum" was to be paid to her children, if any, and if not, it was to be equally divided among his two brothers and two sisters, or the survivor or survivors of them, or if none were living it was to be paid to the executors, administrators or assigns of the survivor as between himself and his daughter. Then follow these directions: "The above provisions are subject, however, to the condition that in the event my said daughter becomes entitled to receive payments as above provided, said payments shall be made to the Union New Haven Trust Company, New Haven, Conn., as Trustee for my daughter, instead of directly to my said daughter. Payments to said Trustee shall be a full acquittance to the Company and the Company shall not be obligated to see to the application of the money so paid."
Koletsky executed a will dated March 15th, 1929, and in this he gave to his wife the use for life of one third of his estate "so long as she is my wife;" and he gave all of the residue of his estate to the plaintiff in trust with directions as follows: To hold, invest and reinvest the property; to pay to his daughter during her life "an amount, which in its discretion is sufficient for her support and maintenance;" to accumulate the income and withhold or expend it for his daughter "for any purpose which in its discretion seems necessary;" if his daughter died leaving issue, the trust was to continue and the trustee was to pay to such issue "an amount which in its discretion, is sufficient and necessary for the maintenance and support of said issue;" if his daughter predeceased him, leaving no issue, or died thereafter without issue, or upon the death of her issue, the trust was to terminate and the *338 fund was to be divided equally among his two brothers and two sisters.
The preparation of this will, the change of beneficiaries under the policies, and the preparation and execution of the certificates were all done as part of a plan of Koletsky to rearrange his affairs in view of the divorce action which his wife had brought against him. He died September 29th, 1930, and his former wife has been appointed guardian of the estate of the daughter. Since his death the plaintiff has received each month approximately $385 from the insurance company. It brings this action seeking directions as to its rights and duties under its appointment as trustee in the certificates filed by Koletsky with the insurance company.
The provision in the last certificates for the payment of interest to the plaintiff as trustee for the daughter, without in any way defining the nature of the trust, standing by itself, clearly presents a situation of an attempt to create a trust, void for uncertainty as to its nature and the rights and duties of the plaintiff as trustee. Fairfield v. Lawson,
We are asked, out of the circumstances we have stated, to find an intent on the part of Koletsky that the plaintiff was to hold the income received from the insurance company during the life of the daughter upon substantially the same terms as those contained *340
in the will with reference to the trust there created, that is, to pay to the daughter such an amount as in its discretion it deemed sufficient for her support and maintenance. If, in any event, there could be thus added to the expressed intent of Koletsky, provisions defining the duties of the trustee, not based in any way upon the terms of the certificates, this could only be done upon the basis of a finding that Koletsky so intended; such a finding would not be a conclusion drawn from the terms of the instruments before us read in the light of the relevant circumstances, but an inference to be drawn directly from those circumstances and hence one of fact, unless, indeed, from those circumstances the conclusion that there was such an intent is the only one that could reasonably be drawn. McDermott v. McDermott,
But that aside, such a definition of the terms of the trust would not accord with the intent which Koletsky has expressed in the certificates. They provide that the insurance company is to retain the "net sum" payable under the policies and to pay the interest thereon in equal monthly instalments to the daughter as long as she lives and then direct that the payments to the daughter shall be made to the trustee "instead of directly to" her; and the certificates then provide for the disposition of "said net sum" at her death, or if she dies before Koletsky then at his death. These provisions clearly indicate an intent that the entire interest is to be paid to the daughter at monthly intervals with the trustee interposed merely to receive it and pay it over to her. Moreover, it is significant that Koletsky nowhere makes any provision for the disposition of any accumulation of interest not paid to her, such as is contained in the will, although obviously if the trustee were entitled to withhold interest from her such an accumulation would be likely to result. The conclusion to which we come is that Koletsky intended either that the trustee should exercise functions which he has not declared or that it was merely to receive the interest from time to time and pay it over to the daughter. If the first is the true situation, the attempted trust, as we have indicated, cannot be enforced because of uncertainty as to its nature and *342
the rights and duties of the trustee; and if the second presents the true situation, the trust is a dry or simple one, which cannot be used to withhold from the daughter the interest payments due her. Cone v. Dunham,
The daughter and the guardian of her estate in their answer ask an allowance of expenses and counsel fees to be paid out of the fund in the hands of the insurance company. The issue in this case involves nothing more than the disposition of the interest and no reason appears why the principal of the fund should be charged with these expenses. Mallory v. Mallory,
To all the questions, a single answer, sufficient to the situation as it now exists, may be made: The payments of interest for the benefit of the daughter *343 should be made to the guardian of her estate and the plaintiff should pay to such guardian the interest it has received on behalf of the daughter.
No costs will be taxed in this court to any party.
In this opinion the other judges concurred.