Beardsley v. Fairchild , 87 Conn. 359 ( 1913 )

The words "my then living, lawful heirs," used in the eighth clause of the testator's will to describe the persons to whom the subject of the gift in that clause should be paid over upon the termination of the life interest of Edwin Banks, are to be interpreted as meaning the lawful heirs of the testator, ascertained as of the time of his death, who should be living at the time of the life tenant's decease. Such interpretation is more in accordance with the natural meaning of the language used than would be the alternative one which would make the testator's lawful heirs, ascertained as of the date of the life tenant's death, the persons designated as the beneficiaries of the gift. The word "heirs" prima facie means those who, in the absence of a will, would be entitled to inherit from a deceased. Nicoll v. Irby, 83 Conn. 530, 534,77 A. 957. Again, it is more reasonable to believe that the testator used the qualifying words "then living" as limiting and defining the members of a class liable to be diminished in its numbers by death as time passed, rather than as descriptive of a class, all of whose members must, by the necessity of the situation, be living when the class is formed. This construction also has it in its favor that it gives to the testator's provision validity and operative efficiency, and avoids unintended intestacy. Wolfe v. Hatheway, 81 Conn. 181, 185,70 A. 645; Pease v. Cornell, 84 Conn. 391, 396, 80 A. 86. As thus interpreted, the provision in question is not void as being in contravention of the statute against perpetuities. This being our conclusion, the conditions involved in the remaining question are not present in the case. That question, therefore, requires no attention.

The request for a reservation in this case contains a stipulation signed by counsel conformably to the requirements of § 71 of the rules of this court. Practice Book (1908) p. 286. Such stipulation is not required where the action in the trial court is ready for final judgment as this necessarily was. Rule 70.

The Superior Court is advised to render its judgment that the remainder attempted to be created in the eighth clause of the will in the "then living, lawful heirs" of the testator is not inoperative and void, but that a valid disposition was thereby made of such remainder to the heirs of the testator, ascertained as of the time of his death, who should be living at the date of the decease of Edwin Banks.

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

In this opinion the other judges concurred.