Hartford-Connecticut Trust Co. v. Beach , 100 Conn. 351 ( 1924 )

The second question reserved naturally presents itself for solution at the outset, since if it is held, under the situation presented, that under the seventh article of the will "the remaining principal of the general share or parcel at the beginning of this Seventh article mentioned" is intestate estate, there should be no occasion for considering question one. The portion of the seventh article involved in the consideration of this question is as follows: —

"Upon the death of my son, the principal of said fund of seventy-five thousand dollars shall immediately become beneficial to his child born during my lifetime if he shall leave but one, or to the issue of such child if he or she shall die before my son leaving issue, and in such case the remaining principal of the general share or parcel at the beginning of this Seventh article mentioned shall be distributed equally to all my grandchildren and the issue of such deceased grandchildren as may be born during my lifetime, if any, they to takeper stirpes and not per capita."

The executors under the will of the deceased son of the testatrix, James G. Batterson, claim that the term "in such case" in the above excerpt from the seventh article of the will, refers to the expression "or to the issue of such child if he or she shall die before my son leaving issue," and that as the child of her son, to wit, Walter E. Batterson, did not die leaving issue before the death of the son of the testatrix, the contingency under which "the remaining principal of the general share or parcel at the beginning of this Seventh article" was to be distributed never arose, and hence it became intestate estate.

This claim and construction, we think, cannot be sustained, as the expression "in such case" clearly refers to "the principal of said fund of seventy-five thousand dollars becoming beneficial" to the child of her son born during testatrix's lifetime or to the issue of such child. This construction is so obvious and necessary, that the matter does not justify discussion.

As Walter E. Batterson, the sole surviving child of her son James, was born during the testatrix's lifetime, the principal of the trust fund of $75,000 did in fact become beneficial to him, the contingency arose in which (such) case the "remaining principal" was to be distributed, and the remaining principal did not become intestate estate. Question two must therefore be answered "no."

The remaining question arises from the situation created by the death of the testatrix's son on January 17th, 1923. The testatrix, as appears by article seventh of her will, created several trusts out of one half of the rest and residue of her estate, amounting to about $190,000. For each of her four grandsons living when the will was executed she created a trust of $5,000. Three were children of her daughter and one the child of her son. She also created a trust of $75,000 for her son, James G. Batterson, Jr. Provision was also made in article seventh for the benefit of her son, for her trustees at their discretion to pay to him the net income of the balance of the one half of the rest and residue of her estate, and also portions of the principal. Article seventh then provides: "Upon the death of my son, the principal of said fund of seventy-five thousand dollars shall immediately become beneficial to his child born during my lifetime if he shall leave but one, or to the issue of such child if he or she shall die before my son leaving issue, and in such case the remaining principal of the general share or parcel at the beginning of this Seventh article mentioned shall be distributed equally to all my grandchildren and the issue of such deceased grandchildren as may be born during my lifetime, if any, they to take per stirpes and not per capita."

At the death of the testatrix's son in 1923, there were five grandchildren of the testatrix surviving, and no grandchild had died leaving issue; these five grandchildren consisted of one child of her son and four children of her daughter. The child of her son claims that under the above excerpt from article seventh, the "remaining principal of the general share at the beginning of the Seventh article mentioned," now amounting to about $103,000, should be divided among the grandchildren of the testatrix per stirpes, whereby he would receive one half and the children of the testatrix's daughter one half to be equally divided among them. The children of the daughter of the testatrix claim that under the will the "remaining principal of the general share" should be divided among the five grandchildrenper capita.

"To aid in the construction we invoke, first, the paramount rule that requires us to ascertain if possible the intention of the testator from the language of the will and all the circumstances." Raymond v. Hillhouse,45 Conn. 467, 472. The child of her son claims that the language of the will indicates the intent of the testatrix to be that the "remaining principal" in question shall be distributed among her grandchildren perstirpes. He claims that the last clause of the above excerpt from article seventh, reading "they to takeper stirpes and not per capita," should be construed to the effect that the "they" has for its antecedent not only the "issue of deceased grandchildren" but also the words "all my grandchildren" preceding. A reading of that portion of the will discloses that such a construction is so strained and forced as not to be sustainable. The "they" who are to take per stirpes, are the issue of deceased grandchildren. Turning to the excerpt from article seventh, the provision that "the remaining principal" in question "shall be distributed equally to all my grandchildren," must therefore be read and construed free from any limitations arising from the words following in the sentence. A provision that property shall be distributed equally to all my grandchildren has a plain and unambiguous meaning under our law. Such a provision is a gift to a class, and such a gift is a gift to each member of the class percapita. Post v. Jackson, 70 Conn. 283, 39 A. 151. "In case of a gift to a class, where the proportionate share of each member is not determined by the will, distributionper capita, rather than by representationper stirpes, will generally be had." Gardner on Wills (2d Ed.) p. 403. This rule from Gardner is quoted with approval and followed in Hoadley v. Beardsley,89 Conn. 270, 283, 93 A. 535. See, also, 2 Jarman on Wills (6th Ed.) [1051]; McIntire v. McIntire, 192 U.S. 116,121, 24 Sup. Ct. 196; Schouler on Wills (5th Ed.) Vol. 1, § 540; 40 Cyc. 1401. Since by our law a gift to a class indicates primarily a gift to the members of the class per capita (Post v. Jackson, supra,), the expression in the provision in question that the property "shall be distributed equally" makes the intent of the testatrix as to a per capita distribution practically beyond question. It is true that a distribution per stirpes might be upheld in spite of the use of the words "distributed equally," if the will otherwise disclosed an intent to make a per stirpes distribution among the grandchildren, for a distribution per stirpes may be appropriately spoken of as "equally distributed." Raymond v. Hillhouse,45 Conn. 467, 473. But this will may be searched in vain for any indication of an intent on the part of the testatrix to depart from the import of a gift to a class as a per capita gift as it is recognized in our law. See Post v. Jackson and Hoadley v. Beardsley, supra.

The testatrix discloses no intent in any part of the will to modify the recognized construction of a gift to a class, by any indication that she intended to make the gift to this class a gift per stirpes. The several uses of the terms per stirpes and per capita in the will show that she was fully informed of the meaning of these terms and competently guided as to their use. Therefore, if it had been her intent to provide that the gift in question should not be divided among her grandchildren equally per capita, the method to accomplish that result was at her disposal.

The Superior Court is advised that the "remaining principal" of the estate, referred to in question one, should be distributed to the five grandchildren of the testatrix per capita, and that question two is answered in the negative.

No costs will be taxed in this court.

In this opinion the other judges concurred.