Simmons v. Simmons , 99 Conn. 562 ( 1923 )

A careful reading of the will leaves little doubt as to the testator's intent. In the second article of the will, if force is given to all of its expressions, there appears an equivocation and patent ambiguity, and it becomes questionable whether an estate in fee is given in the real property therein devised and a life estate in the personalty described, or whether an estate for life only is given in realty and an absolute estate in full and complete ownership in the personalty; and perhaps whether, by either of the bequests, the wife takes more than a life interest. But by the provision of the ninth article it is made entirely clear that the wife takes only a life estate in the house and lot numbered 679 Lindley Street, in that there is a direction to sell the same at her death and to divide the proceeds equally between three daughters and two sons of the testator. With the intent of the testator with regard to this piece of realty satisfactorily determined, we can, by the application of certain minor rules of construction, determine the complete intent manifested by the testator in the second article.

It has been uniformly held that where phraseology of a bequest does not lend itself to clear interpretation of a testator's intent, owing to an unusual grouping of its component words and a grouping which can hardly be held to be intentional on his part, certain words appearing in the writing may be transposed, or if that is absolutely necessary to clarify the provision, one or more words may be dropped or words substituted or supplied. Points of punctuation may be supplied, shifted or elided, if the result would be a clear and sensible statement, not out of accord with other provisions of the instrument and the testator's intent thereby manifested. Phelps v. Bates, 54 Conn. 11, 16,5 A. 301; Woodruff v. Marsh, 63 Conn. 125, 133,26 A. 846; Healy v. Healy, 70 Conn. 467, 471, 39 A. 793;Jackson v. Alsop, 67 Conn. 249, 254, 34 A. 1106;Angus v. Noble, 73 Conn. 56, 62, 46 A. 278; Mallory v.Mallory, 72 Conn. 494, 501, 45 A. 164; Cody v. Staples,80 Conn. 82, 85, 67 A. 1; Plaut v. Plaut, 80 Conn. 673,679, 70 A. 52; Wolfe v. Hatheway, 81 Conn. 181,185, 70 A. 645; Gardner on Wills (2d Ed.) 332, 333, 334; 1 Jarman on Wills (6th Ed. Bigelow) Chap. 16.

The will is in most respects inartificial, and was probably drawn by the testator himself or some other layman at his request. Some of its provisions are, however, expressed in terms of professional draftsmanship, doubtless derived, as is often the case, from other wills which have come under the observation of the writer. Now it is a very probable supposition that the testator, in expressing his testamentary wishes, had written, or caused to be written, the words of the second article down to and including the comma coming immediately after the name of his wife, and then as it occurred to him that the words of the devise so written would convey a fee simple, added the words "during her natural life," and then neglected to strike out the comma and to place it instead after the word "life," where it should be if he intended only to give her a life estate. When this correction is made, the article would read: "I give and devise . . . to my wife Julia Simmons during her natural life, all cash in banks" etc., to the end of the article as it stands. This gives value to the words "during her natural life," and also secures to the wife an absolute interest in the personalty included in the description in the article, a result evidently intended, since he gave a life estate in the realty with remainder to certain of his children, but makes no provision over of an executory interest of like character in the personalty; and in the residuary clause he gave all the remainder of this property to his wife. It is not to be supposed that he intended to leave any of his estate intestate. Such a construction should not be made except where clearly required. A construction which disposes of all of a testator's estate is always to be preferred, where it can be possibly gathered from the wording of the will as a whole. This rule is elementary and no citation of authority need be made in its support.

In the third article of the will the testator gives to three of his sons therein named, the house and lot at 509 Lindley Street, equally, share and share alike, and provides that the same shall not be sold until his son Anderson becomes of age; and then goes on to make the provision as to the property not then being sold if either of his sons desires to use it for a place of business, in which event the son shall pay a just amount for rent, which rent is to be divided equally among them "or their legal issues." The article is given verbatim in the statement of facts, and it is clear that so much of it as follows the words "twenty one years of age," is so vague and uncertain that its provisions cannot be effectuated. No method of carrying out these provisions is indicated so that they can be enforced in any manner known to the law. We cannot say what would happen if more than one son wanted to occupy the place for business purposes, or how a just rent is to be fixed. The provision, in so far as it gives the property in fee and in common, coupled with restraint on alienation till one of the sons becomes of age, is clear and valid. The rest of the article must be declared void for uncertainty.

The fourth article gives the lot on the south to his wife "outright," that is, in fee, subject however to a direction to sell or rent the place and apply the proceeds in the reduction of mortgages and expenses against the property 679 Lindley Street above mentioned. The estate vests in the wife subject to the burden of a condition as before stated. The evident intent of the testator is that such property holdings as should at his death remain in his estate, shall be consolidated by using the property so that the sale of one tract shall reduce the incumbrances on another. The word "expenses" used in this article has no definite legal signification, and depends on the context for its definition and application. As connected with a dwelling-house, it would undoubtedly mean carrying expenses, that is, mortgage interest, taxes, insurance, maintenance and repairs, and perhaps other minor items of the same sort. We have no doubt but that the testator used the word in this sense, and, so explained, it marks a valid and intelligent provision. The gift at the outset is in fee, and if anything should remain after the application of the proceeds of sale or rental over and above the amount necessary to satisfy the condition annexed to the devise, the rest would belong to the widow, Julia Simmons.

The fifth article of the will gives the property located at 58 and 60 Hill Street to his two daughters to be held in trust for them until both shall become twenty-one years of age, while the rental accruing up to the time of that event shall be equally divided between them. In the event of the death of either one of them without issue the survivor is to take the whole of the property. Coupled with the devise just referred to, is the provision of article six, whereby the testator requires the two daughters to apply the proceeds of an insurance policy on his life, payable to them, in reduction of any mortgage or expenses against the property given them in article fifth. This is an example of the familiar practice of giving a legacy to a person subject to the payment by him of a certain amount from his own resources, and is valid. The purpose is to relieve the general estate of the testator from the payment of any debt secured by mortgage upon this property, in other words, to prevent his general direction to pay debts contained in the first paragraph from so operating as to require the general estate to exonerate the property given the two daughters from any mortgage incumbering it to the extent of the value of the insurance policy. The condition is subsequent, Sands v. Lyon, 18 Conn. 18, and requires payment by the daughters of the value of the insurance policy into the estate, or of so much thereof as may be necessary to pay off any mortgages or expenses existing against the property, in order to avoid forfeiture. If there is any overplus, of course the daughters retain it, since it is their own money they are using to the extent required.

Under article ninth there can be no doubt but that the five children of testator therein mentioned take a remainder in fee in 679 Lindley Street after the death of their mother.

No question is propounded as to the disposition of the personalty bequeathed to the widow in the second article, quite probably because the provisions of the will make that matter free from doubt. We have been obliged, however, to give it attention in the complete construction of the article.

None of the estate of the testator is intestate.

To the first question propounded, we answer that the widow takes an estate for life. To the second, that the children mentioned in paragraph nine take a vested remainder in common. To the third, that the persons therein named take an estate in fee simple in common, subject to the restraint on alienation until Anderson Simmons attains his majority. To the fourth, that to the extent indicated in the last answer the third article is valid; its further provisions are void for uncertainty. To the fifth, that the property devised to Julia Simmons is in fee, subject to a condition that she sell or rent same and devote the proceeds to the reduction of mortgages and charges against the property No. 679 Lindley Street. If any part of the proceeds remain after satisfaction of the condition, it enures absolutely to the widow. The article is valid. To the sixth, that the proceeds of said policy, to the extent required to satisfy the condition expressed in article sixth, are payable to the estate of the deceased. Any overplus is the property of the two daughters. To the seventh, that under paragraph nine the children named therein take a vested remainder in common, to be enjoyed after the death of their mother.

The Superior Court is advised to render judgment as to the several questions propounded in accordance with the foregoing answers to the questions submitted.

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

In this opinion the other judges concurred.