35 A.2d 207 | Conn. | 1943
In this action, the trustees under the will of Friend A. Russ are seeking a construction of certain of its terms. The will was before us in an earlier case, and, in a footnote to our opinion, the trust provisions are summarized. Willis v. Hendry,
At the death of each of these daughters, the principal the income of which was given to her was disposed of by identical provisions. That as to Mary's portion is as follows: "Upon the death of my granddaughter, Mary, surviving my daughter and myself, or if my granddaughter, Mary, predeceases the survivor of my daughter and myself, then upon the death of the survivor of my daughter and myself, I direct my trustees to pay in equal shares to her issue then surviving, per stirpes and not per capita said one-half of the principal of the trust fund the income of which my said granddaughter, Mary, would have been entitled to receive had she survived, and if my said granddaughter, Mary, leaves no issue then surviving, I direct my trustees to pay said one-half of the principal of the trust fund the income of which my granddaughter would have been entitled to receive had she survived to such persons and in such proportion as may be provided in the last Will and Testament of my said granddaughter, Mary, and should she fail to leave a Will or effectually dispose thereof, then I direct my Trustees to pay said one-half of the principal of the trust fund as follows: namely: One-half thereof to the United Hospital Fund of New York City or its *432 successors for the uses and purposes of said corporation and the remaining one-half to Griffin Hospital of Derby, Connecticut, or its successors." For convenience we shall refer to this provision as sub-paragraph 10. Only one other provision of the will requires mention: After sub-paragraph 10, the testator makes an alternative gift in the case of each hospital if "at the time of the distribution of the principal" it has been dissolved or ceased to function and has no successor, using the quoted phrase four times, twice as regards Mary's portion of the estate and twice as to Jean's.
When this will was previously before us, Helene, who survived the testator, had recently died, Mary having predeceased her, and we held (p. 666) that the hospitals were immediately entitled to receive one-half the portion of the principal the income from which Helene had been receiving. John has now died, leaving his wife surviving but no issue. Hence, by the terms of the will, three-fifths of the portion of the principal from which he had been receiving income falls within the provision that it "shall be added to and form a part of the estate hereafter created in Paragraph Ninth D of this my Will and shall be held and disposed of in accordance therewith." As Helene is dead and Mary predeceased her, without issue, no descendant of the testator who could receive the income from one-half of this portion of the principal now survives, and the first question presented to us is as to its proper disposition. The hospitals claim that they are immediately entitled to receive it. The other interested parties claim that, under the provision we have quoted from the will, the rights of the hospital accrued, and only accrued, "upon the death of Mary, or if she predeceased the testator and her mother, Helene, upon the death of the survivor" of them; that *433 their rights were exhausted when they received a share of the principal upon Helene's death; that they are not entitled to receive any portion of the principal which, on the death of John, fell within the provisions of Paragraph Ninth D; and that one-half of this portion of the principal is therefore intestate.
Sub-paragraph 10 does not present a situation which can be solved by the application of the principle that, where one or more successive life estates are created, with an ultimate remainder over, and a life tenant dies before succeeding to the enjoyment of the estate, the succession to that enjoyment by those whose estates are in terms postponed by the intervening life estate is accelerated. Hollister v. Butterworth,
The words of sub-paragraph 10 fix a definite time when certain rights accrue to the hospitals, that is, upon the death of Mary, or should she predecease the survivor of the testator or her mother, upon the death of that survivor. At that time the trustees are "to pay" the portion of the principal the income of which was to go to Mary to her issue, or if she left no issue they were "to pay" it to such persons as she might provide in her will, and if she failed to dispose of it by will, "to pay" the portion of the principal in question to the hospitals. The word "pay" as here used was undoubtedly intended to express the meaning of the satisfaction of a demand in money or by a transfer of securities. Chase National Bank v. Schleussner,
Undoubtedly it was the testator's general intent that all the principal of the residue, in the event that John died without issue, or, if he left issue, all except the portion which would go to them, was ultimately to be divided between the issue of the testator's granddaughters, Mary and Jean, should they leave issue; but as between their respective issue there were no cross gifts, and consequently if either died without issue the half of the principal intended for her issue was to be disposed of to such persons as she might designate by will, or, in default of a valid will, to the hospitals. When the will was before us on the other occasion, we pointed out (p. 666) that its terms show that the testator *437
contemplated that the hospitals might take a share of the principal even as early as his own death, because he expressly provided that, if Mary died before her mother and himself without issue and having made no will, upon the death of the survivor of them, which might be himself, the hospitals would be entitled to the fund. That the hospitals should now receive the portion of the principal in question would apparently not be contrary to the testator's general intent. Indeed, there is much in the will which tends to support their claim. The daughter Jean has issue; had Mary died when she did, leaving issue, they would now be in the position of the hospitals, and only by the construction of the will which the hospitals claim could equality in that event be preserved between the respective issue of Mary and Jean. So, if Mary died with issue, the contrary construction would make equality between the respective issue of Mary and Jean depend upon the fact whether Mary survived her uncle John or died before him. It must also be recognized that the testator clearly intended by his will to make a complete disposition of his property. However, "Provisions in a will evidencing a general intent, may serve sometimes to explain, but never to explain away, the expression of a particular intent." Connecticut Trust Safe Deposit Co. v. Hollister,
We are also asked as to the effect of the provisions of the fourth article of the will in which the testator provides that at the death of his widow the homestead, which he had given to the trustees for her use during her life, or if sold the proceeds of the sale, "shall be and become part of my residuary estate and be disposed of as such as hereinafter provided," and as to the effect of the provisions in the ninth article that at her death the portion of the principal of the fund the *439 income of which she was to receive during her life "shall remain part of my residuary estate and be disposed of as such in accordance with the provisions of this Paragraph Ninth of my Will." The widow is living, but of advanced years, and there is no contingency attached to the provisions we have quoted. Counsel for the trustees stated that it will be of material assistance in the administration of the trust if these questions are answered now, and we have decided to do so.
The testator intended that at the death of his widow the homestead or, if it is sold, the proceeds of the sale should become an integral part of the trust fund given to the trustees in the ninth article, and that the right given her in that article to receive a share of the income from the trust should then cease as a distinct interest. Had the widow died before Helene, the share of income the latter would have been entitled to receive would have been larger in amount because of the increase in the fund by reason of the addition of the homestead or the proceeds of its sale and of the termination of the right of the widow to receive income and had Mary survived her mother the increased income would at the latter's death have been equally divided between Mary and Jean. Helene's interest would, however, have retained its essential nature of a right, subject to certain limitations, to receive all the income of the fund not given to others. On Helene's death, one-half of this interest passed to her daughter Jean, and, on the widow's death, this one-half will presumably be increased in amount owing to the augmented income of the estate. The disposition of the other one-half interest, to which Mary would have been entitled had she lived, is determined by the provisions of sub-paragraph 10. For the reasons we have stated, this paragraph fails to dispose of so much *440 of the principal of the fund as is represented by the increase of income which would have come to Mary upon the widow's death, had Mary lived; and that portion of the fund will then be intestate property, at once distributable as such.
The testator's granddaughter Jean and her children further ask us to advise whether or not any of the testator's heirs to whom he gave a life use of the income are precluded from participating in the distribution of the intestate property. The claims for relief in the complaint serve to characterize this action as one seeking a construction of a will. Practice Book, Form 504. We cannot consider this request for advice, for two reasons: it is not included in the questions propounded in the stipulation for the reservation; and it pertains, not to a construction of the will, but to the rights of certain heirs of the testator to share in the distribution of the intestate portion of the estate, and the question is not one which falls within the issues which can properly be presented in an action seeking merely a construction of the will. Carpenter v. Perkins,
In answer to the first question propounded, asking whether the hospitals have any interest in the three-fifths portion of the principal which, on John's death, would have been paid to his issue had he left any, and, if the hospitals are not entitled to it, as to the proper disposition of it, we advise that one-half of this portion of the principal remains in the trust, augmenting the share of income payable to Jean Warren Southack, and the other one-half of this portion is to be presently distributed as intestate estate. In answer to