Blakeman v. Sears , 74 Conn. 516 ( 1902 )

The testator in his will provided that the corpus of his estate should be held in trust during the lives of his three children, his wife, and her mother, and that upon the death of the survivor of these persons it should then go in equal shares to such of his grandchildren as should then be living.

This disposition of the corpus of his estate thus made in the will he radically changed in the codicil. There he directs that, at the time specified in the will when the trust is to end, the corpus of his estate shall be divided into three equal parts, and that these parts shall go "to the heirs or legal representatives" of his three children. This last disposition he says is to stand in place of the one made in the will, and he ratifies and confirms his will "except so far as it relates to the final distribution." That part of the will — the disposition of the corpus — he expressly says is not confirmed nor ratified. He says, in effect, every other part of my will is to stand save that, and this is in effect a revocation of the part so treated. Reading the will and codicil together, we think the codicil absolutely revokes the disposition of the corpus of the estate made in the will, and puts in its place, as the testator's final and only disposition of the corpus, the one made in the codicil.

The next question is whether the disposition of the corpus of the estate made in the codicil is a valid disposition under the so-called statutes against perpetuities; and the answer to this question depends upon the answer to be given to the question, what do the words "heirs or legal representatives" of the testator's children, as used in the codicil, mean?

The provisions of our statutes in relation to perpetuities (found in General Statutes, §§ 537 and 2952) were repealed by Chap. 249 of the Public Acts of 1895, but as the will and codicil in question took effect before that time, their provisions are governed by the law as it stood before such repeal. The disposition in the codicil is "to the heirs or legal representatives" of the testator's children. We think the words "heirs" and "legal representatives," as here used, mean the same thing. They describe the persons who are to take the corpus of the estate at the time of distribution, namely, at the death of the last survivor of the beneficiaries under the trust. They are used in their natural and proper sense as including all those persons who, at that time, shall be capable of inheriting from either of his children named, or of taking the property of either of such children under the statute of distributions. This being so, the disposition of the corpus of the estate made in the codicil is void and of no effect.Tingier v. Chamberlin, 71 Conn. 466. The consequence is that the testator has failed to make any disposition of the corpus of his estate and that it is part of his intestate estate, to be disposed of as such at the termination of the trust provided for in the will.

In this view of the case it becomes unnecessary to answer categorically the questions propounded in the complaint.

The Superior Court is advised (1) that the disposition of the corpus of the estate of the testator made in the will was revoked by the codicil; (2) that the disposition of it made in the codicil is void; (3) that it is intestate estate of John Griffin subject to the trust provided for in his will.

No costs to be taxed in this court.

In this opinion the other judges concurred.