Beit v. Beit , 98 Conn. 274 ( 1922 )

We take the several questions in their order. (a) By the phrase "the interest . . . accruing during all the time until the reverting to her of the principle," the testator admittedly intended the interest on the bequest to Alta Beit to accumulate for some purpose until the principal became payable to her at the time of her marriage. The only subject-matter of this first clause of the will is a provision for Alta. Presumably the accumulation of interest goes for her benefit. That is the natural result of a pecuniary legacy postponed in enjoyment and coupled with a provision for accumulation of interest until the time for payment arrives. The term "accruing" suggests the same result, and no other disposition of the accumulated interest is expressed.

The claim that it is given to the testator's four sons by the second clause of the will, is met by the fact that the gift to them in that clause is by its express terms a present gift of the balance of the testator's cash "deducting the $5,000 above mentioned." We regard the suggestion that the accumulated interest becomes intestate estate at the time of Alta's marriage, as quite inadmissible.

The question whether the interest on this $5,000 should begin to accrue at the date of the testator's death or one year thereafter, seems to be answered by the case of Redfield v. Marvin, 78 Conn. 704,63 A. 120, where the testator made several pecuniary legacies payable in instalments, and directed that "at every payment of principal . . . there shall be added to such payment all the interest accrued upon the whole principal unpaid up to the date of such payment." We held that interest did not begin to run on these legacies until one year after the testator's death, and we see no distinction between that case and this.

On the brief for the testator's four sons, the claim is made that the legacy to Alta Beit is contingent upon her marriage, and that if she dies unmarried it passes to the four sons under the second clause of the will. This question, whether the legacy to Alta Beit vested at the death of the testator, or is contingent on her marriage, is one upon which the executor has not asked for judgment, and is not, therefore, included in the reservation as a question upon which our advice is asked. It seems clear, however, that the gift is a present gift vesting at the death of the testator, though its enjoyment depends on a contingency which may never happen, and cannot happen in case Alta dies unmarried. In that case the principal and interest will become intestate.

(b) On its face the testator must have intended the term "cash" in the second clause of the will to include bank deposits. Otherwise it would be impossible to deduct from the cash given to the sons the $5,000 already given to the daughter by the first clause of the will. Bank deposits are often spoken of as money in bank or cash in bank, and so a gift of cash which cannot otherwise have any effect must be construed to include bank deposits. We are not aware, however, of any usage which would permit us to say that the word in question can be stretched to cover the other personal property described in the inventory as interest in meat business, hides and household furniture. If the testator intended the second clause to cover these items, he has unfortunately failed to use words which express that intent, and the result is that they are not disposed of by the will.

(c) The third and fourth clauses of the will dispose of the testator's real estate. He divides the income thereof equally between his wife and daughter until the latter shall be married, when the entire income is given to his wife for life. The first question is whether the gift over to the sons and daughter is in fee or for life. The disposing words are: "After the death of my wife the entire income and the real estate proper shall revert to my four sons or as many of them as shall then be living and my daughter." The word "revert" is evidently used in the same sense as in the first clause of the will, meaning to vest in enjoyment, and such a gift over after the death of the life tenant is a present class gift subject to the life estate. Norton v. Mortensen, 88 Conn. 28, 89 A. 882. The same intent is expressed by the concluding words of the fourth clause: "I desire to have this real estate remain for the use and benefit of my children in the event of the death of my wife."

A difficulty is supposed to arise from the final phrase of the third clause: "such income from or real estate proper shall be equally divided among them"; but if the use of the disjunctive was not a mere inadvertence, the shadow of uncertainty thus created is not enough to cut down the fee already given.

The claim is also made by the daughter Alta, that the equal division above provided for is an equal division between "my four sons or as many of them as shall then be living," taking as a class, "and my daughter." This claim attaches too much importance to the position of the phrase "or as many of them as may then be living," for it assumes that the testator had some knowledge of the grammatical implications which might be drawn from placing this phrase before the words "and my daughter," instead of after them; whereas, the whole will shows that he was incapable of expressing himself with grammatical or verbal accuracy.

Taking the whole third clause together, it fairly expresses the testator's intent that the real estate proper should be equally divided among his five children at the death of his wife.

The fourth clause is not inconsistent with the third. It does not give the widow a base fee after the marriage of the daughter, but, taken as a whole, it repeats and emphasizes the dispositions of income and real estate already made by the first clause of the will. The equal shares of the five children, all of whom survived the testator, vested in right at the death of the testator, though postponed in enjoyment until the death of the widow.

Questions (d) and (e) are answered by what has already been said.

(f) The gift to Alta of one half of the income from the real estate until marriage, is a temporary provision for her benefit until, by marriage, she becomes entitled to the legacy given her by the first clause of the will. It is of course not transmissible to her heirs. Upon Alta's marriage the entire income is given to the widow for life, but the question whether it also goes to the widow in case of Alta's death unmarried is not free from difficulty. Every other intent is excluded. Intestacy is presumptively excluded. The intent that any part of this income should go to the four sons before the death of the widow is positively excluded. On the other hand, the gift of the entire income to the widow after Alta's marriage manifests a general intent that she should have the entire income when Alta ceased, by the terms of the will, to be entitled to it; and looking at the whole effect of the third clause, we think it may fairly be construed as expressing that intent.

The Superior Court is advised: (a) that the interest accruing upon the bequest to Alta Beit, from one year after the testator's death to the time of her marriage, should be paid over to the beneficiary at the time of the payment to her of the principal; (b) that the term "cash" in the second clause of the will includes specie, bills, and bank deposits, and does not include the other personal property mentioned in the inventory and appraisal; (c) that the fee of the real estate mentioned in the third and fourth paragraphs of the will vested in the five children of the testator as a class, share and share alike, at the testator's death, subject to the wife's life interest and to the interest of the daughter in one half of the income thereof until the daughter marries; (d) the construction of the will suggested in question (d) is not its true construction; (e) the interest of Alta Beit in the corpus of the testator's real estate vested at the testator's death; (f) in case Alta Beit should die unmarried, the portion of the income from the real estate to which she is entitled until her marriage, passes to the testator's widow for life.

No costs will be taxed in this court.

In this opinion the other judges concurred.