151 A. 265 | Conn. | 1930
Lead Opinion
Questions eight and nine involve the right of Ella J. Disbrow, widow of Elmer B. Disbrow, to share in the real estate distributed to him, as his nearest of kin. While she was made a party to the action as administratrix of his estate, she is not a party, individually, and her rights cannot therefore be adjudicated in this action. If this were an independent action for the construction of the will of David B. Disbrow it might be sent back to have Ella J. Disbrow made a party. Since it is an appeal from an order of the Court of Probate the Superior Court cannot enlarge the scope of the appeal, and the defect in parties cannot be cured by remanding the case to that court.
The fourth paragraph of the will provides for the contingency of the death of one of the children of the testator "before coming into possession of their said one-third part." Since that contingency has not occurred there is no need to answer question two which asks for the construction of this paragraph of the will.
This leaves the principal question to be answered that of whether Kenneth, the adopted son of Clara Wildman, takes the one-third share in the estate of which she had the life use, as her lineal descendant or nearest of kin. Whether the words "lineal descendants" and "nearest of kin" are to be construed as including an adopted child depends upon the intention of the testator to be ascertained from the language of the will read in the light of all the circumstances surrounding the testator at the time of its execution. In their ordinary and primary meaning they connote *687
relationship by blood and will be so construed unless it appears that the testator intended to use them in a more extended sense. Our statute of adoption (§ 4879) provides that an adopted child becomes the legal child of its adopting parents with the right of inheritance from them and their relatives the same as though it were their natural child. The testator is presumed to have known of this statute, which was in existence when this will was executed (Revision of 1888, § 472), and it is contended that he used the terms "lineal descendants" and "nearest of kin" as the equivalent of "children" and as including a child by adoption. A presumption that such was his intention does not arise from the mere assumption of his knowledge of our law of adoption. The existence of the law at the time of the execution of the will is one of the facts to be considered among the circumstances surrounding the testator, but by itself will not determine the testator's intention. Middletown Trust Co.
v. Gaffey,
In Ansonia National Bank v. Kunkel,
As to questions 1, 3 and 4, we answer that the words "lineal descendants" in paragraph three of the will and the words "lineal descendants" and "nearest of kin" in paragraphs five and six of the will do not include the adopted son of Clara J. Wildman, and that Ella J. Hull and Elmer B. Disbrow were her nearest of kin. As to question 5 we answer Yes; 6, Yes. Question 7, in view of our conclusion, does not require an answer. As already indicated, Question 2 does not need to be answered, and the absence of Ella J. Disbrow, individually, as a party to this reservation does not permit an answer to questions 8 and 9.
In this opinion WHEELER, C. J., and HINMAN, J., concurred.
Dissenting Opinion
The testator gave the life use of all of his property to his wife, and after her death, the use of one third to each of his children during his or her life. The fifth paragraph reads as follows: *690 "When either said Ella, Elmer, or Clara shall decease after gaining possession of said part, then it shall become the actual property of their lineal descendants or if there be none then it shall go to their nearest of kin." In the sixth paragraph he provides that his homestead property should not be conveyed away during the life of any of his children but: "shall be after their decease the actual property of some of their lineal descendants, or if there be none, then to the nearest of kin." In the seventh article he directs that "no husband of said Ella, and no husband of said Clara, shall ever have any control in any form or manner whatsoever in or to any of the aforementioned property."
I agree with the majority opinion in its holding that the appellant, an adopted child of the daughter Clara, could not share in the estate as a "lineal descendant." I cannot agree that he would not take the share in which she had a life use as her "nearest of kin." The gift made to "nearest of kin" by the testator represents his final desire as to the disposition of the property in default of lineal descendants. It is a gift to the person or group coming within that designation, not to any individual or individuals whom he had definitely in mind. The question is very different from that presented where an adopted child claims a share in an estate under the designation of "child or children" because this class is much more restricted than that designated by the words "nearest of kin" and because "child" has no other accepted general meaning except that of a lineal descendant in the first degree. "Nearest of kin" even under the meaning given it in the majority opinion may search out very remote relatives, and it does have a generally accepted meaning which is not dependent upon blood relationship. In Close v.Benham,
If there is anything in the will before us which throws light upon the meaning which the testator gave to the expression, the construction for which I contend is rather fortified than otherwise. When the will was executed he had three living children, of whom two were married and one had four children. If he had only blood relationship in mind, it is not reasonable to suppose that he would have looked beyond those seven or such other children as might be born to his children or grandchildren, that is, that he would look upon blood relationship as going beyond the line of direct descent, except as a remote possibility. That he meant to keep his homestead within that line he makes clear by the sixth paragraph of the will; if he had the same intent with reference to the rest of his property, he would have broadened this paragraph of the will to include it. His express exclusion of the husband of Ella and Clara from any share in the property is significant, for if he had in mind blood relationship alone as the basis of participation in his bounty, there would *692 have been no need of it. Nor, again, in his substitutionary gift over of the homestead to the "nearest of kin" is it reasonable to suppose that he would have preferred it to go to some remote blood relative rather than to one who by adoption might become the person most closely bound by affection and all ties of family except that of blood to one of his children.
By our statute of adoption "the adopted child becomes, by the fact of adoption, the child in name and in law of its parents, with all the reciprocal rights and duties existing between them as between natural child and parent, and with the right of inheritance between parent and child and their relatives, the same as though such adopted child was the natural child of such adopting parents." Middletown Trust Co. v. Gaffey,
In this opinion Haines, J., concurred.