Mahoney v. Mahoney ( 1923 )

The claim of appellants that while in this State there is practically no difference between joint tenancies and tenancies in common, in that the right of survivorship by common law existing in the case of joint tenancies is not recognized, still the rights of survivorship may be created by will, is undoubtedly true. It is only necessary for a testator to indicate such an intention, and the intention "if discoverable, will, of course, govern." Allen v. Almy, 87 Conn. 517,525, 89 A. 205. That a right of survivorship as between the two daughters of the testator is created by the will in question, is pressed by appellants' counsel and lies at the foundation of several of his claims.

There is nothing in the will whereby provisions as to one person surviving another, an estate of survivorship, technically so-called, is created. The use of the words "surviving" and "survived," does not of itself create such an estate. These words are used in paragraph eight of the will simply to designate a person who has lived after the death of another, or to indicate the facts of such continuance of life. Also, as a prerequisite of an estate of survivorship, there must exist a joint tenancy in the beneficiaries to be affected by the testamentary disposition. In this will no joint estate in the residuum is created in favor of the two daughters of the testator. The whole residuum is given to the use of the widow for her life, and at her death it is to be equally divided between her two daughters named, "one-half to each of them, their heirs and assigns forever."

In White v. Smith, 87 Conn. 663, 89 A. 272, there was a devise over in fee simple to three children of the brother of the testatrix after the decease of certain life tenants, "or as many as may be living at that time," to be divided equally. On page 676 we say, negativing a claim of joint tenancy and survivorship: "The two of the three children who survived the testatrix did not take as joint tenants. The gift was to persons nominatim to be divided equally between them. These features are indicative of a tenancy in common, and there is nothing in the will to suggest that the testatrix intended to create a joint tenancy, a tenancy not favored in the law." In Houghton v.Brantingham, 86 Conn. 630, 639, 86 A. 664, speaking of joint tenancies, we said: "Where such tenancies are recognized, if a testator makes a bequest to two in language adequate to create a joint tenancy, but adds that the subject of the bequest is to be divided equally between the legatees, it is held that these words create a tenancy in common." In the instant case there is nothing in the language of the will to create a joint estate, and even had there been language adequate for that purpose the subsequent direction to divide the residuum would plainly indicate a tenancy in common in the two daughters prior to the actual division.

Proceeding to the other questions involved in the construction of the will, we find that paragraph eight of the will stands by itself as a full and sufficient disposition of the residue of testator's estate. The only matter in the other portions of the will of value by way of interpretation, is the fact that provision is made therein for his five sons, and that his primary intent was to give to his daughters the residue.

Before considering the nature of the title created in testator's two daughters, it is convenient to determine the point at which their several interests came into being by virtue of the provisions of paragraph eight of the will, that is, whether their estates were vested or contingent, and if vested when did the vesting occur. We are constrained to hold that each daughter took a vested interest at the death of the testator in one half of the residuum of the estate, which interest was liable to defeat by either of two conditions, neither one of which actually occurred. The first condition in the paragraph under consideration is to this effect: "but if either of my said daughters shall die before my decease or that of my said wife leaving no child or children them surviving." This condition is ineffective because one of the daughters is still living, and the other died leaving a child who survived her grandmother, the widow of the testator. The second condition provides "but in case of the death of both of my said daughters . . . leaving no child or children." This condition has not operated, because one daughter and a child of the other is still living. The above conclusion is sustained by abundant authority. "It may be stated as a general rule, that where a testator creates a particular estate, and then goes on to dispose of the ulterior interest, expressly in an event which will determine the prior estate, the words descriptive of such an event, occurring in the latter devise, will be construed as referring merely to the . . . determination of the possession or enjoyment under the prior gift, and not as designed to postpone the vesting." 1 Jarman on Wills (6th Amer. Ed. Bigelow)[*]756. Applying this rule the author says (p.[*]768): "In Finch v.Lane [L. R. 10 Eq. Cas. 501], the rule was applied to a case where the apparent contingency was, not the devisee attaining a particular age, but his surviving the person to whom a [part] prior estate was devised. The devise was to the testator's wife for life, with remainder, as to part, to his brother for life, and from and immediately after the death of his wife, subject to his brother's interest in the part, to M. in fee if she should be living at the death of the wife, but if M. should die before the wife without leaving issue, then to other persons: M. died before the widow, but left issue; and it was held by Lord Romilly, that the case was governed by Phipps v. Ackers [9 Cl. F. 583], and that M. took a vested remainder." "It is not the uncertainty of enjoyment in the future, but the uncertainty of the right of enjoyment, which makes the difference between a vested and a contingent interest." (4 Kent Com. 206.) Wiggin v. Perkins,64 N. H. 36, 39, 5 A. 904.

In Throop v. Williams, 5 Conn. 98, we find confirmation of the principle established in the foregoing citations. Very clear enunciation of the doctrine is contained in Dale v. White, 33 Conn. 294. To the same effect also is Austin v. Bristol, 40 Conn. 120. The will considered in this case, after giving a life estate to testator's widow, provided: "Upon the decease of my said wife, I give all my said estate to such of my children as may be living . . . at her decease, and to the issue of those who may have deceased, and to their heirs and assigns forever, to be equally divided among them;" etc. The will contained the further provision that "if none of my children or their lawful issue shall be living at the time of the decease of my said wife, I then give, devise and bequeath all my said estate to William L. Wight," etc. The testator left a widow, four children, and one grandchild, the daughter of a daughter, who had died before his death. The grandchild died before the death of the widow. This case is strikingly similar to the instant case in its facts as well as in the legal principles involved. It was held that the grandchild took an immediate vested interest under the will, and that upon the death of the widow, that interest became a part of her estate. Claims similar to those made in the case before us were made, and the case was presented with great fulness by eminent counsel, resulting in an exhaustive opinion. In passing upon the clause containing the contingency as to the death of all of testator's children or their lawful issue before the death of the life tenant, the court says that this clause is entirely consistent with an interest vested, but subject to the contingency provided for, and quoting from the decision in Harrison v. Foreman, 5 Vesey Jr. 207, 209, adds: "There is a vested interest, . . . and the contingency, upon which it is to be divested, never happened. The vested interest therefore remains, as if that contingency had never been annexed to it." Among other cases favoring the above conclusions we have: Dale v. White, 33 Conn. 294;White v. Smith, 87 Conn. 663, 89 A. 272; Norton v.Mortensen, 88 Conn. 28, 89 A. 882; Eaton v. Eaton,88 Conn. 269, 91 A. 191. We therefore conclude that the daughter Elizabeth P. Fitzsimmons took under the will a half interest in the residuum of the estate which was vested at her death, and was not subsequently divested, and that distribution thereof was properly made to her estate.

The appellants' counsel in his brief and argument rested his opposition to the judgment in favor of the appellees, apparently upon the idea that the latter were supporting the judgment in the case upon the doctrine of an implied fee tail resulting from a gift to the daughter and a provision over in case she died leaving no child or children surviving the testator's wife. Such a gift to the child of the daughter would have been implied, had the provision been concerned with the death of the daughter Elizabeth without issue living at her own death, as appears from the leading case of Turrill v. Northrop, 51 Conn. 33, containing an exhaustive citation and review of prior cases in accord. This principle does not apply, however, to a case like the present, wherein the decisive factor is the death of the beneficiary without a child or children living at the time of the death of some other person. Had facts existed in this case rendering proper the application of the doctrine last referred to, it would not have benefited the appellants. In such a case distribution would properly have been made to the surviving grandchild and not to the estate of the mother.

To quite an extent the brief of appellants stresses the point that there is in the provision under consideration an equivocation rendering the same doubtful, and, as a preliminary to regarding in a favorable light such a claim, cites considerable elementary authority to the point that wills should be construed liberally to effectuate the intent of the testator. The equivocation relied on is the effect of the phrase "leaving no child or children them surviving," and of the other phrase "leaving no child or children at the death of my said wife." The liberality which appellants propose to apply is to strike out these words altogether. Doubtless perceiving that there is absolutely nothing in the provision itself or of any context in the will, to justify such a proceeding, they wish to show certain facts extraneous to the will which might favor such an idea as according with the real intent of the testator. Such facts are set up in the amendment to the sixth reason of appeal, and an attempt was made by them to support the same by the questions asked of two witnesses, all of which were excluded by the court and to the exclusion of which exception was duly taken, as appears in the above statement of facts.

There is nothing in the will to justify an inclusion in the record of the facts so sought to be established. There must first appear upon the face of the will itself some latent ambiguity or equivocation adequate to make doubtful the meaning of the instrument in connection with such facts as are ordinarily presented regarding the relationship of the testator and his beneficiaries, and were presented in the instant case, before further extrinsic facts can be considered. Our rule is sufficiently stated in the headnote to Jackson v.Alsop, 67 Conn. 249, 34 A. 1106, as follows: "Although the object sought in the construction of wills is the intent of the testator, it is nevertheless the intent as expressed in the language used. If that is not ambiguous, either as to the nature of the estate intended to be devised, or as to the person intended as the devisee, no extrinsic evidence is admissible to show a different or unexpressed meaning or intention upon the part of the testator." "While extrinsic evidence may be admitted . . . to make clear the doubtful meaning of language used in a will, it is never admissible, however clearly it may indicate the testator's intention, for the purpose of showing an intention not expressed in the will itself. . . ." Bryan v. Bigelow,77 Conn. 604, 614, 60 A. 266. "The intent must in every case be drawn from the will, but never the will from the intent." Fairfield v. Lawson, 50 Conn. 501,508. "So far as concerns the construction of a will, the question always is, not what the testator meant to say, but what is meant by what he did say." Weed v. Scofield, 73 Conn. 670, 677, 49 A. 22. See alsoLee v. Lee, 88 Conn. 404, 91 A. 269; McDermott v.Scully, 91 Conn. 45, 95 A. 350; Birge v. Nucomb, 93 Conn. 69, 105 A. 335; Day v. Webler, 93 Conn. 308,105 A. 618.

The gist of the argument for appellants upon this point seems to be that events have happened producing a situation not contemplated by the testator, and that therefore the words of the will must be so construed as to effectuate the intent which he probably had in mind. This procedure is entirely inadmissible, especially when it would go to the extent of striking out from the will the words relating to surviving children of each of the daughters. It is assumed that the sole intent of the testator was to provide for his daughters during their lives, and that he was not concerned with providing for any children they might leave. Even if the allegations of this amendment, so far as they state facts rather than conclusions, were found proven, they could not justify the construction of the will claimed by appellants. This amendment could have been successfully attacked by demurrer.

The fact principally relied upon by appellants is that the testator was informed by both of his daughters, and believed, that neither of them intended ever to marry, and with that in view his will was drawn as it stands. Such a suggestion pays a poor compliment to his sagacity, and becomes fanciful when we are asked to consider that with this idea in mind he proceeded to make provision in his will for the event of his daughters having and leaving surviving children, and for the nonsurvival of such children.

There occurs a further suggestion that the claim of the appellants as to the disposition of the property left by the testator to his daughters, when pressed to a logical and possible conclusion, leads to a situation where if both daughters died before the mother, each leaving children surviving the latter, these children would take nothing under their grandfather's will, and that his sons, their uncles already provided for in the will, would take the whole of the residue also. If the testator contemplated such a result he went out of his way to say something different. What we have before said disposes adversely of the alternative claim of appellants that the residuum of the estate is intestate.

We necessarily conclude that Elizabeth P. Fitzsimmons died seized of a vested remainder in one half of the real property contained in the residuum of the testator's estate, and of an executory interest of the same character in the personality. The distribution ordered by the Court of Probate was legally correct, and properly affirmed by the Superior Court.

There is no error.

In this opinion the other judges concurred.