Greene v. Huntington , 73 Conn. 106 ( 1900 )

It was determined in a previous action brought for a judicial construction of this will, that the proper tribunal to which to resort for determining its meaning was that which the testator had himself created for that purpose.Wait v. Huntington, 40 Conn. 9, 11. The sixteenth section gave the executors a general power of sale, at their discretion. The seventeenth conferred the power now under consideration. The former unquestionably passed with the office, upon the death of Jedediah Huntington, to the surviving executors. The same rule must apply to the latter. The construction given in 1888 to the second clause of the second section of the codicil by the two executors then surviving, must therefore stand as binding upon all parties interested, unless in reaching it there was a clear abuse of power. Wait v. Huntington, supra; Pray v. Belt, 1 Pet. 670, 680.

The object of the second section of the codicil was to vest the ultimate ownership of the Central Wharf property in Jedediah Huntington or those who should represent him. The trustees were, after the death of his mother, "to convey one undivided fourth part of the said trust estate in fee to Jedediah Huntington, the eldest son of my deceased nephew, or to his legal representatives." There are no direct words of gift as respects the fee of this land, except that of the legal estate to the trustees. As they, however, took a legal estate only, the beneficial estate should be construed as vesting as of right, at the testator's decease, in those to whom it was to be ultimately conveyed, if the words of the testator may reasonably bear such an interpretation. A devise to A or his heirs is, in legal effect, a devise to A if he be living at the decease of the testator, but if he be not then living, to those who then may be his heirs. The term "legal representatives" had been previously used in the fifth section of the will, in the provision against the lapse of any of the pecuniary legacies therein given. It is plain that, as thus used, it meant not executors or administrators, who might under certain circumstances represent only creditors, but those who would take for their own benefit. The term prima facie should receive the same interpretation when repeated in the codicil, and this presumption is strengthened from the fact that it is to these legal representatives that the land is to be conveyed in fee. To direct such a conveyance to an executor or administrator would be unusual, and, under most circumstances, inappropriate. If, therefore, this provision of the codicil stood alone, Jedediah would have taken at the testator's decease an equitable fee in a fourth of the wharf property, subject to the life interest in favor of his mother.

As to the conveyance of the other three fourths, the direction is somewhat different. It is, upon the death of his brother John, to be conveyed in fee "to Jedediah Huntington, if living, or if he is dead then to his legal representatives." Taken by themselves alone, these words would point strongly to the conclusion that unless he should survive John, his representatives were to be the grantees, and so the ultimate beneficiaries in remainder. But it is highly improbable that the testator contemplated a division of the property, by which upon his decease one fourth should go to Jedediah and at a later period the other three fourths to his representatives. To avoid such a result, each of these provisions must be construed in the same way. The executors so construed them as to make the former control, as respects the nature of the beneficial title in remainder after the death of John R. Huntington. If it became vested in Jedediah at the testator's decease, it was certainly vested in him at death of John R. Huntington. If it became vested in Jedediah at the testator's decease, it was certainly vested in him at the decease of his brother. To read the devise to him as absolute, in case he survived the testator, was, to say the least, not an inadmissible construction of it, and the determination of the executors (which may fairly be rested upon this position) therefore bound all parties in interest.

Upon the death of Jedediah, this remainder became part of his estate, and no conveyance by the trustee was or is necessary to perfect the title; but there would be no impropriety in his executing release deeds in favor of those who have succeeded to the interest of the decedent.

His widow, under our statute, had right of dower in one third part of the real estate of which he "died possessed in his own right." General Statutes, § 618. He was, when he died, the owner of an equitable remainder in fee in the wharf property, in his own right. A reversioner in fee subject to an estate for life is said to be seized of the reversion of the tenements as of fee and right. 2 Wn. on Rl. Prop. *391. He who owns a vested remainder in fee holds equally in his own right. The remainder vested in Jedediah Huntington was only an equitable one, and the land was in the possession of the legal owner. But this possession was for the purpose of protecting and managing the property for the ultimate benefit of the remainder-man, as well as for the present benefit of the life tenant.

Dower is an estate favored by the law. The common law of England favored it by establishing the right of the widow in lands held by her husband as a trustee. A different rule was adopted in Connecticut by allowing her to resort only to lands held by her husband "in his own right." Fish v. Fish,1 Conn. 559; Goddard v. Prentice, 17 id. 546, 555. The same considerations which led us to construe the statute as embracing equities of redemption require that it should be read as including equitable remainders in fee, although the possession may be held in trust. The land in such a case is substantially the husband's, and the possession may fairly be deemed to be held for him. 1 Perry on Trusts, § 324;Hemingway v. Hemingway, 22 Conn. 462, 472. The term "possessed" in our statute is more comprehensive than the word "seized" which is employed in those of some other States, the courts of which have felt bound to exclude dower in equitable estates. Reed v. Whitney, 7 Gray, 533, 536;Todd v. Oviatt, 58 Conn. 174, 190.

The widow of Jedediah Huntington therefore was entitled to dower in the wharf property, subject to the paramount title of the trustee for the purposes of the trust.

The term "legal representatives" in the third section of the codicil must receive the same meaning already attributed to it when previously used by the testator, in so far as to take it as descriptive of those who would, upon Mary Huntington's decease, succeed by law, as her next of kin, to the beneficial interest in her intestate estate. We think that it may also be properly held to refer to those answering this description, not at the time of her death but at that of the testator. This conclusion is supported by the rule that the law favors vested estates, coupled with the fact that there are here no direct words of gift, and by the principle that the testator is not to be presumed to have intended an illegal disposition of his property. Under the statute against perpetuities, which was in force when he died (General Statutes, § 2952), the remainder in favor of Mrs. Huntington's legal representatives would have been void, had he intended those coming under that designation to be first ascertained at the time of her death. Tingier v. Chamberlin, 71 Conn. 466. If he meant only those who were her next of kin at the date of his own death, his legacy in their favor is valid. That construction is therefore to be adopted. St. John v. Dann,66 Conn. 401, 405.

There can be no apportionment, in favor of the estate of Mrs. Huntington, of the income of the trust received since her decease. Rent is never apportionable; nor are dividends from savings banks. While it may be customary for these banks to make such dividends semi-annually, and at a fixed rate, the sums divided upon the plaintiff's deposits were nevertheless a part of the capital of the trust fund, until severed from it by the votes of the directors. The borrower of money on interest payable semi-annually, is under an absolute contractual liability, by virtue of which the interest is deemed, in favor of a life tenant, to accrue from day to day, and so to be apportionable in case of the death of the latter during any half year. Savings banks, on the contrary, are mere agencies for investing the funds of depositors, and their only obligation to them, as to any resulting income, is to pay or credit such dividends from it as the directors may from time to time declare in the exercise of a sound discretion. The moneys thus divided upon the plaintiff's deposits may have been wholly earned since the death of Mrs. Huntington, or they may come from a surplus accumulated years before. Her estate has no interest in anything that was not actually severed from the general funds of the bank during her life.Spooner v. Phillips, 62 Conn. 62, 70.

The Superior Court is advised that the first question stated in the complaint should be answered in the affirmative, and the fifth in the negative; that the trustee is under no duty to make any conveyance of any interest in the wharf property; that the expression "her legal representatives," in the third section of the codicil, refers to Jedediah and John R. Huntington only; that upon the death of each of these his half of the remainder in the trust fund, created by said codicil, became part of his estate; that no part of said trust estate passes under the residuary clause of the will; and that no part of the dispositions affecting said trust estate offended the statute of perpetuities.

No costs will be taxed in this court.

In this opinion the other judges concurred.