Bridgeport Trust Co. v. Parker , 97 Conn. 245 ( 1922 )

It is conceded that the remainders to the "heirs" of Alfred in paragraphs two and three of the testator's will must be held void because obnoxious to the statute of perpetuities in force when the testator died, unless it can reasonably be inferred from the will and from the circumstances under which it was executed, that the testator intended to use that word in the limited sense of "children." The defendants who represent the children of Alfred, and the widow of one of them, claim that this intent of the testator is indicated in the eleventh paragraph of his will, the material part of which reads as follows: "At my death should my son Alfred A. Blakeman be dead and all of his heirs be dead it is my will that the whole of the estate be left at the disposal of my wife Caroline M. Blakeman. . . ." It must be admitted that the testator did not use the word "heirs" in this paragraph, either in its primary significance or as meaning those who might take Alfred's estate under our statute of distribution; for Caroline, being the mother of Alfred, is herself included in both of these classes. In order to give any sensible interpretation to the eleventh clause of the will, it is necessary to assume that the testator used the word heirs in that clause either as meaning "issue," or in the still more restricted sense of "children." Words used more than once in the same instrument are prima facie used in the same sense; and so it is said that the word "heirs" in paragraphs two and three must also be understood as meaning either issue or children; and as between two constructions one of which will defeat the gifts and the other validate them, the latter should be adopted.

That is true as between two constructions equally consistent with the probable intent of the testator; but the intent of the testator as manifested in the will must control, and we think it is impossible to discover any intent on the part of the testator to limit these remainders to the children of Alfred and to exclude the representatives of a deceased child of Alfred. In the absence of any discoverable intent to so limit the word "heirs," it must be supposed to have been used by the testator in the larger sense of "issue," not only because that is the meaning which remains after eliminating its possible significations of heirs at law and distributees, but also because it is more probable than otherwise that a testator situated as was the decedent, should have intended the remainder to the heirs of his son Alfred to include not only surviving children but also representatives of any deceased children. If we suppose, for example, that none of Alfred's children had survived him, but that one of his sons had left issue him surviving, and if no question of the statute of perpetuities arose, it would be impossible to limit the word heirs so as to exclude such issue. We must therefore hold that the attempted remainders to the heirs of Alfred in paragraphs two and three of the will are void.

That being so, it is conceded that the personal estate described in paragraphs two and three, being property not otherwise disposed of by the will, passes to the residuary legatees under paragraph nine. HartfordTrust Co. v. Wolcott, 85 Conn. 134, 139,81 A. 1057; Bristol v. Bristol, 53 Conn. 242, 255, 5 A. 687;Bartlett v. Sears, 81 Conn. 34, 47, 70 A. 33.

The final question is whether the remainder interest in the real estate described in paragraph two also passes to the residuary legatees, or whether it becomes intestate estate. At the common law the personality described in a lapsed bequest passed under a general residuary clause, but the realty described in a lapsed devise became intestate estate and descended to the heir. That distinction has been adopted in this State.Greene v. Dennis, 6 Conn. 293, 305; Brewster v. McCall'sDevisees, 15 Conn. 274, 298; Remington v. AmericanBible Soc., 44 Conn. 512, 514. In Giddings v. Giddings,65 Conn. 149, 159, 32 A. 334, it is intimated that if the question were a new one in this State it might be difficult to give any reason for such a distinction; and it must be admitted that so far as any discoverable intention of the testator is concerned, it is hard to discriminate between the effect of this residuary clause — which expressly includes both real and personal estate — upon the realty and personalty described in paragraph two of the will and disposed of by the same words of gift. Nevertheless it appears to us that the rule announced in the cases cited has become a rule of property by which we must abide.

The Superior Court is advised that the remainders to the heirs of Alfred in paragraphs two and three of the will are void, that the remainder interest in the personal estate described therein passes under the residuary clause of the will, and that the remainder interest in the realty described in paragraph two is intestate estate of Sylvester Blakeman and is to be distributed accordingly.

In this opinion the other judges concurred.