Wallace v. Wallace , 103 Conn. 122 ( 1925 )

Adeline Wallace Morris was one of the nine children of the testator surviving him. She died in 1902, leaving surviving her five children and never having exercised the power of appointment given her under the tenth article of the will of the testator. By the consent of all parties in interest the trustees have paid to the five children from the death of their mother until the death of one of these children, Henry L. Morris, on August 4th, 1924, the dividends which their mother would have received had she continued in life. Henry L. Morris left surviving him his widow, Carrie M. Morris, but no children and no will. His widow, to whom he was married on June 7th, 1899, is, under Chapter 221 of the Public Acts of 1921, entitled to receive the whole of the estate of her husband on its settlement. The defendant Charles D. Morris is the administrator of the estate of Henry L. Morris, which is still in process of settlement. The administrator and Mrs. Morris claim that the administrator is entitled to receive the dividends from the trust created by article seventh of the will of the testator, which Henry L. Morris would have continued to receive had he lived, and that upon the settlement of the estate Mrs. Morris, the widow, as sole distribute, is entitled to receive the dividends from this trust which her husband would have continued to receive had he lived, until the termination of the trust, at which time she will succeed in right to that part of the corpus of the trust fund which was bequeathed to Henry L. Morris under the tenth article of the will of his grandfather, the testator. The determination of this claim is the chief purpose of this reservation.

The problem is not under our rules of construction difficult. Its solution requires us to ascertain, in the first place, the meaning of the testator in his use of the term issue in these several articles. Article seventh gave the bulk of the testator's estate, being his stock in R. Wallace and Sons Manufacturing Company, to trustees for certain purposes, — to care for and manage the same, to collect the dividends thereon as they may accrue, "and to pay over the same to all my children (including the issue of any child that may die before me), in equal shares during the life of my said children." The trust was to continue until the death of the last survivor of the testator's children, as is provided in article tenth, which then continues, "and I then give and bequeath all such stock to my grandchildren,per stirpes, and not per capita." This gave the control and management of the trust to the trustees until its termination upon the death of the last of his children. During the existence of the trust the children of the testator are to receive the income in equal shares. Equality of gift of income to his children is a dominant purpose of the testator as expressed in his will. When he makes provision in article third for the ultimate disposition of the proceeds from the sale of his homestead given in trust to these trustees, it is "to pay over to and for the benefit of all my children, in equal shares, the proceeds of said described property." In article seventh in the direction to the trustees is found this provision, "and to pay over the same to all my children . . . in equal shares." And its concluding sentence provides: "My intention being, to have each child (and issue of any deceased child) in the end, receive an equal share of my property." And in the eleventh article the testator provides in the residuary article: "I give, devise and bequeath to all my children in equal parts." Having provided for the distribution to his children of the proceeds of the homestead and the income from dividends received by the trustees from the R. Wallace and Sons Manufacturing Company, the testator provides for the disposition of the income which each child would have received, in the contingency of his death prior to the testator or during the existence of the trust. In article third he provides that "the issue of any deceased child, whether dying before or after me, to receive the share which the parent of such issue would have received if living." In article seventh as to the income from dividends received by the trustees he provides: "The issue of any of my children dying before or after me to receive the share which the parent of such issue would have received if living." And in the concluding sentence he repeats his intention that each child and the issue of any deceased child should receive an equal share of my property, "the issue of any deceased child to take perstirpes." In both the third and seventh articles provision is made that the issue of any child dying before or after the testator shall receive the share which the parent of such issue would have received if living. In the ninth and eleventh articles a like provision is found. That the issue is to take per stirpes and the share which its parent would have taken point unmistakably to another dominant purpose of the testator, equality between the issue, whether they be the issue of a child of the testator dying either before or after him.

We pass next to the consideration of who are included in the term issue. This is our governing rule: "The term `issue,' in a will, is to be construed as a word of purchase, unless it appears from the context and surrounding circumstances to have been used as one of limitation. Its primary, and therefore presumptive, meaning, when used as a word of purchase, is heirs of the body, and includes descendants of every degree. But when the intention of the testator, as evinced by the context and surrounding circumstances, indicates that he used the word `issue,' not in its larger significance, but in its more restricted sense, it will be construed so as to effectuate the testator's intent and to be synonymous with children or grandchildren."Stamford Trust Co. v. Lockwood, 98 Conn. 337, 344,119 A. 218; Bartlett v. Sears, 81 Conn. 34, 39,70 A. 33. Is the term "issue" used in this will in its restricted sense, grandchildren? The provision to which we have referred in article seventh, "the issue of any of my children dying before or after me to receive the share which the parent of such issue would have received if living," is repeated in substantially identical language in articles third, ninth and eleventh. Who would in the ordinary uses of language be understood as the "parent of such issue" if not the father or mother? And in this will the parent referred to is one of the children of the deceased. Issue as here used in the ordinary uses of our language would be understood to be the children of the testator's children, that is, his grandchildren, unless indeed, a contrary intention was manifest in the will interpreted in the light of the surrounding circumstances. Where the term issue is used in correlation with parent, we have held in construing other wills that children were meant by issue, and such has been the general holding elsewhere. In Mitchell v. Mitchell, 73 Conn. 303,305, 47 A. 325, we were called upon to construe this provision in a will: "But if one or more of the said four children of L. Mitchell shall have died leaving issue of his or her body, said issue shall receive the same portion that his or her parent would be entitled to if living." We disposed of the question concerning the meaning of "issue" in these few words: "The word `issue,' as used in the tenth section of the will, means children. It includes only such issue as can take from a parent, i. e. children." See also Austin v. Bristol,40 Conn. 120, 134, 135; King v. Savage, 121 Mass. 303,306; Chwatal v. Schreiner, 148 N.Y. 683, 689,43 N.E. 166; Gammell v. Ernst, 19 R. I. 292, 33 A. 222; 33 Corpus Juris, 821, cases cited in note 23; 23 Cyc. 365, cases cited in note; 17 Amer. Eng. Ency. of Law (2d Ed.) 547, and cases cited. If we turn to the eleventh article the gift of the residue is to the issue of any deceased child of the testator; if we turn to the tenth article it gives the corpus of the trust fund to "my grandchildren, per stirpes, and not per capita." These words, issue and grandchildren, are used in the same sense "unless a contrary intention appear by the context, or unless the words be applied to a different subject," which does not appear in this case. 2 Jarman on Wills (5th Amer. Ed., Vol. 3, pp. 702-709) pp. 840-843;Pease v. Cornell, 84 Conn. 391, 400, 80 A. 86;Bridgeport Trust Co. v. Parker 97 Conn. 245, 249, 116 A. 182. The issue of his son William J. Wallace who predeceased him, are spoken of in the seventh article as children of William J. Wallace and elsewhere in the will as issue. Under this rule it follows that the testator uses, interchangeably, issue, his grandchildren, and the children of his children. If the meaning of "issue" be descendants, the provisions of this will relating to such issue are void within our statute in force at this time, General Statutes, 1888, § 2952, being illegal perpetuities.Leake v. Watson, 60 Conn. 498, 506,21 A. 1075; Tingier v. Chamberlin, 71 Conn. 466,42 A. 718; Nicoll v. Irby, 83 Conn. 530, 533, 77 A. 957. Our rule of construction under such circumstances is that stated in Wolfe v. Hatheway, 81 Conn. 181, 185,70 A. 645: "If two modes of construction are fairly open, one of which will turn a bequest into an illegal perpetuity, while by following the other it would be valid and operative, the latter mode must be preferred." See also Hoadley v. Beardsley, 89 Conn. 270,277, 93 A. 535; White v. Smith, 87 Conn. 663, 673,89 A. 272. There is a presumption against the intent of a testator to leave any part of his estate intestate and "courts will endeavor to avoid a construction of a will which will result in partial intestacy." Burr v.Tierney, 99 Conn. 647, 654, 122 A. 454. Since issue in this will means the children of the testator's children, or the grandchildren of the testator, we next inquire when did their right to the income begin and when did it cease? In a recent case we answered this in the summary of our law which we there gave: "We have uniformly held that unless the will sufficiently expresses a contrary intent, a limitation over, after a life estate, to the issue of the life tenant, and, failing issue, to the heirs, or heirs at law, or to the children or grandchildren of the testator, or to children of another than the testator, are gifts to a class, and vest in point of right upon the testator's death, although their right of possession is postponed until the termination of the life estate. We have adopted this rule in the belief that it leads to the early vesting of estates, and will carry out the probable intent of the testator, where the will indicates no contrary intent."Close v. Benham, 97 Conn. 102, 103, 104, 115 A. 626;Norton v. Mortensen, 88 Conn. 28, 89 A. 882; Bartram v. Powell, 88 Conn. 86, 89 A. 885. The will neither directing nor indicating a contrary intention, this rule of law prevails and these grandchildren took as a class at the death of the testator, a vested interest in the income which the parent of such grandchild would have received if living and which was an alienable and transmissible interest; the class opening to let in afterborn grandchildren.

The same rule governs the disposition of the proceeds of the homestead in article third, and the distribution of the corpus of the trust fund in article tenth, in which the testator provides that upon the death of the least survivor of his children the trust shall terminate, and, he says, "I then give and bequeath all such stock to my grandchildren, per stirpes, and notper capita." That rule is "that where a will contains a limitation over to children, whether of the testator, the first taker, or other person, with the right of enjoyment or time of distribution postponed, it will, in the absence of a clear expression in the will of a contrary intent on the part of the testator, be construed as one to the children as a class, vesting in interest immediately upon the death of the testator, and embracing as its ultimate beneficiaries both those children who are in existence at the death of the testator and such as may subsequently come into being before the time of enjoyment or distribution arrives." Bartram v. Powell, 88 Conn. 86, 89, 89 A. 885.

There is nothing in the will expressing or implying a right of survivorship among the grandchildren. There is no gift over to any one after the gift to the grandchildren. In short, there is nothing in the will to indicate in the slightest degree that the testator intended that the interest of the grandchildren in the dividends should cease in case of their death prior to the termination of the trust, nor that their interest in the corpus of the trust fund should cease in case of their death prior to its distribution. The interest of the grandchild was absolute subject only to the power of appointment given in article tenth, in which the testator provided, "any of my children is hereby empowered to execute a will limiting and appointing the share or proportion of such stock (which his or her children may receive upon said termination of said trust) among such children, in such proportions, and upon such conditions as he or she may deem best for his or her children." This power of appointment did not divest her children of the right to the corpus vested in them, it never having been exercised by Mrs. Morris. Under our construction of this will Henry L. Morris took an indefensible and absolute share, namely, one fifth of the dividends which his mother would have received had she lived up to the termination of the trust, and is entitled to one thirtieth of the corpus of the trust fund upon its distribution, and that the same descends to his widow under the law.

The Superior Court is advised that the questions upon which the advice of this court is desired, we answer as follows:

2. (a) The estate of Henry L. Morris is entitled to one fifth of the share of the income from the trust fund which Henry L. Morris would have received during his life pending the settlement of the estate, and thereafter the widow, Carrie V. Morris, is entitled to the balance remaining after such settlement by right of descent.

(b) Upon the death of a grandchild leaving a will, its valid dispositions of the net income vested in him by article seventh will govern; in the event that the grandchild leave no will, the said share of the net income will go to his estate and upon its settlement the balance and the share of the net income thereafter and until the termination of the trust, be distributed under the statute of distribution of intestate estates.

(c) Both children and grandchildren take a vested interest which takes effect upon the death of the testator.

(d) "Issue" as used in the seventh, eighth and ninth articles means children.

(e) The principal of the trust fund vested in the grandchildren as a class upon the death of the testator; the closs opening to let in afterborn grandchildren.

(f) Upon the death of a grandchild during the continuance of the trust leaving issue, that is children, at the termination of the trust, and leaving a will, its valid dispositions of the principal of the fund vested in him under and by article tenth, will govern; in the event that the grandchild leave no will, the said share of the principal of the fund will go to his estate and upon its settlement the balance be distributed under the statute of distribution of intestate estates.

(g) No.

No costs will be taxed in this court in favor of any party.

In this opinion the other judges concurred.