24 A.2d 485 | Conn. | 1942
Mark M. Sellek died, a resident of New Haven, in 1931. In his will he gave several legacies to individuals and one to a hospital, and provided a trust fund for the support of a brother, the principal to be distributed at the brother's death. Then followed the seventh article, in which he gave the sum of $50,000 to the plaintiff in trust, the part relevant to the issues before us reading as follows: ". . . to invest the same and divide equally the income therefrom, after payment of all the expenses attendant upon its execution, to my brothers, Albert E. Sellek, now of Chicago, Illinois, George Philip Sellek, now of Portland, Oregon, and my sister Sarah S. Walker, now living in the County of Kent, England, during the *568 remainder of their lives, in at least semi-annual payments. And I further direct my Trustee at the death of the last survivor of my said brothers or sister, to pay over the remainder of said trust fund from which this income has been derived, to Yale University. . . ." In the eighth article he gave all the residue of his property, real and personal, to a friend, Mrs. Malley, to be hers absolutely; and in the ninth article he provided that if "any of the pecuniary legacies" should "fail for want of a beneficiary" the legacy was to become a part of the residue. The questions before us arise out of the provisions in the seventh article. The testator's sister, Sarah S. Walker, died in 1940, but the two brothers named in the article are living. The plaintiff seeks advice as to the persons to whom shall be paid the portion of the income which Mrs. Walker would have received had she lived.
There are four possible ways in which the share of Mrs. Walker in the income might now be disposed of: (1) It might be paid to the surviving beneficiaries; (2) it might be paid to the estate of Mrs. Walker; (3) it might be regarded as having lapsed and so fall into the residue or be intestate; (4) it might be accumulated until the end of the trust and become a part of the principal. 1 Scott, Trusts, p. 718. As there is no indication whatever in the will of an intent on the part of the testator that, upon the death of one of the beneficiaries, the share of income to which he or she was entitled should accumulate and become a part of the principal, we may lay that possibility out of consideration. New Haven Bank v. Hubinger,
The surviving beneficiaries make the claim that the gift to them and their sister was a class gift, and that they therefore became entitled, at her death, to receive *569
all the income of the trust. Except for the provision that the income should be paid to the beneficiaries "during the remainder of their lives," there would be no basis for that contention. The gift of income was made to the beneficiaries eo nomine, to be divided equally between them; as appears from the preceding article of the will, there was at least one, other brother of the testator not included among the beneficiaries of the trust; the use of the words "brothers" and "sister" was clearly descriptive, not intended as a primary designation of those who should receive the income. Morris v. Bolles,
If it were not for the clause "during the remainder of their lives," the effect of the gift would be to vest in each of the three beneficiaries a right to receive the income until the termination of the trust, which right would, upon the death of any one of them, become a part of his or her estate. New Britain Trust Co. v. Stanley,
No provision is, therefore, made in the will for the disposition of the share of the income of any of the beneficiaries who died, from the time of his death until the termination of the trust at the death of the last survivor. The right to the income during this period became a part of the residue of the estate and the residuary legatee is entitled to receive it. Colonial Trust Co. v. Brown,
The purpose of the ninth article is far from clear. Without that provision, any legacy not a part of the residue which failed for want of a beneficiary would become a part of the residue. The words "pecuniary *571
legacies" are broad enough to include rights to receive income under the trust set up in the seventh article. Matter of Foster,
We note that the residuary devisee and legatee argues, against her own interest, that the provisions of the seventh article constitute a class gift. But we are concerned with effectuating the intent of the testator, not the wishes of beneficiaries under the will, and, as we pointed out in a similar situation, the result she seeks may be accomplished by her voluntary act. Burnham v. Burnham,
It is sufficient to meet any present need of the plaintiff for advice to say, in answer to the questions propounded, that the share of the income which Mrs. Walker would have received had she lived is to be paid, until the termination of the trust, to the residuary legatee and devisee.
No costs will be taxed in this court to either party.
In this opinion the other judges concurred.