Maltby Appeal from Probate , 47 Conn. 349 ( 1879 )

Carpenter, J

This court construed the will of Elnathan Atwater in respect to the interest therein given to Margaret Atwater in the case of Hollister v. Shaw et al., 46 Conn., 248. That was an application to the Superior Court by John C. Hollister, trustee of Margaret’s share under the will, and executor of Margaret’s will, for a construction of both wills. One object was to determine authoritatively what disposition should be made of that portion of Elnathan Atwater’s estate which had been given in his will in trust for the benefit of Margaret. On the part of the present appellants it was contended that it belonged to Mrs. Maltby under the will of Margaret. The appellees contended that it went directly to the heirs of Margaret as legatees of the will of Elnathan. The court sustained the claim of the appellees.

Pursuant to the advice of this court the court of probate directed a distribution to the heirs of Margaret. Prom that decree the present appeal was taken. The appellants filed the following reasons for the appeal:

“ First. Because the said probate court erred in holding that the estate given to Margaret Atwater by the will of her father, Elnathan Atwater, and set out to her in the distribuof said Elnathan’s estate, was not in fact her estate, but was the estate of said Elnathan.

“ Second. Because the said probate court erred in holding that said estate did not pass to the devisees of the said Margaret, under her last will and testament, for the reason that the said Margarethad not exercised the power of appointment over the same.

“ Third. Because the said probate court erred in holding that the said Margaret Atwater did not, by the will of her father, Elnathan, take such an estate in the one-quarter part of his estate thereby given to her, that upon her death it was disposable by her last will and testament as her estate.

“Fourth. Because the fact is that the said Margaret Atwater intended by her last will and testament to exercise the power of disposition over said estate with which she was vested by the will of her father, Elnathan, and that she died in the belief that she had so disposed of said estate, and that therefore the said probate court erred in not finding that the said Margaret did in fact dispose of said estate by her last will and testament, 'and that it had passed to the devisees under her will.

“Fifth. Because the said probate court erred in holding that it was bound by the decree of the Superior Court in its order referred to, to find as a fact that the said Margaret Atwater had not exercised the power of disposition over said estate with which she was vested by the will of her father, Elnathan.”

'The appellees replied that the reasons of appeal were untrue and insufficient. They further replied by setting out at length the proceedings in the former case as a bar to thie^appeal. The appellants demurred.

Two issues were thus presented—1st, the sufficiency of the reasons of appeal, and 2d, the sufficiency of the facts alleged by the appellees in bar of the appeal.

Whether the former proceeding resulting in the decision of this court already referred to is a technical bar of this appeal is a question we need not discuss. We will therefore proceed at once to consider the question presented by the reasons of appeal.

A comparison of those reasons with the questions reserved in the former case will show that the questions now raised were raised and decided then.

The questions reserved, so far as they bear upon the question now under consideration, were as follows:—

“First. Whether Margaret Atwater in her will exercised the power of appointment provided for in the will of Elnathan Atwater, over that part of the trust estate held in trust for her.

“ Second. Whether the heirs at law of Margaret Atwater are entitled to receive by distribution that part of the trust estate of Elnathan Atwater held in trust for her, notwithstanding her will devising her estate to Ruth A. Maltby as residuary legatee.

“ Third. Whether the petitioner, as trustee of that part of Elnathan Atwater’s trust estate held in trust for Margaret Atwater, holds the same since her death in trust to convey to her heirs at law, or in trust to convey to Ruth A. Maltby, the residuary legatee in her will.

“ Fourth. Whether Elnathan Atwater by his will devised any estate to either of the four persons named therein, which they or either of them could dispose of by will without specifically directing, limiting and appointing what estate was so disposed of, as well as the person to whom it was.so devised.

“Fifth. Whether Elnathan Atwater by his will devised any estate to either of the eestuis que trust therein, except a bare power of appointment.”

It is obvious from the questions thus stated that the claim of the appellants on the former trial was two-fold—1st, that Margaret Atwater in her will exercised the power of appointment, and 2d, that under the circumstances she held said estate as her own, and that it passed by her will like any other estate owned by her.

There is however this difference. In the present case the appellants rely principally upon the claim that Margaret took by her father’s will an absolute estate, (she dying without children,) which was disposed of by her will without being specifically mentioned or referred to; while on the former trial more stress was laid on the claim that she had in fact exercised the power of appointment.

But both questions were involved in the former case, both might have been made on that trial, both were in fact made, and both were decided by the court.

We might with propriety have declined to hear the case a second time, but the importance of the principles involved, and the magnitude of the interests depending upon the result, have induced us to depart from the usual course and listen to the able arguments in behalf of the appellants upon a point but lightly pressed on the former trial.

That point however was noticed by the court. It is the first question considered in the opinion after stating the case, on page 252, and was expressly decided, all the judges concurring, although on the other question, whether Margaret Atwater had exercised the power of appointment, two of the judges dissented.

The point decided was that the estate never vested in Margaret, but vested in the persons named as trustees in trust for her during life, and after her death for her children, nominees or heirs at law as the case might be. It follows that the decree of the court of probate must be affirmed, unless we are now satisfied that that decision ought to be overruled.

A careful re-examination of the terms of the will in connection with the authorities cited convinces us that the decision is in harmony with the real intention of the testator.

In the fourth clause of the will he divides his property into four shares. In the seventh clause he disposes of one of the four shares as follows: “ I give to my beloved daughter, Margaret Atwater, subject to the regulations and provisions hereinafter contained.” And in the ninth clause his language is not only explicit but emphatic:—“ Each and every principal, of each and every one of the parts and proportions of my estate, given by the fifth, seventh, and eighth articles of this will, as aforesaid, I give, devise and bequeath to Dennis Kimberly, Isaac H. Townsend and Thomas Atwater, and the survivors and survivor of them, as joint tenants in fee-simple and forever, as a distinct fund, upon the trusts and for the purposes following; that is to say:”

Then follows the trust in favor of the person named (Margaret) during life, “ and upon the further trust, at her death, to pay the trust fund over to her child, children or their representatives in fee simple forever; and in default of such child, children, or representatives to such person or persons as the said Margaret by her last will and testament or in any instrument in writing in the nature thereof, shall direct, limit or appoint; and in default of such direction, &c., to the heirs at law of the said Margaret, who shall be living at her death, in the same manner and in the same proportions as the same would have descended and been distributed to them according to the present statute of distributions of the state of Connecticut, if the said person had owned the same as his or her proper estate at the time of his or her death, and had died intestate.”

It will be observed that the trust does not terminate at the death of Margaret, but the property continues subject to it, in express terms, until it is actually delivered over to the children, nominees or heirs at law; so careful was the testator to provide for the disposition of the property after the death of Margaret in every possible contingency.

Suppose the will had simply provided for children after the death of Margaret; omitting altogether the provision in favor of appointees and heirs. In that case if there had been children it would have been the ordinary case of a life estate only in Margaret with remainder to the heirs of her body. If she had died leaving no issue then perhaps the principle of Mayer v. Townsend, 3 Beaven, 443, and other cases hereinafter referred to, would apply and give her a perfect title. But the will goes further, and in default of children gives her the power of alienation by one species of conveyance—“a will, or an instrument in writing in the nature of a will.” Suppose that had been all. But the power of alienation will not convert a clear life estate into a fee. Lewis v. Palmer, 46 Conn., 454. Much less will the contingent and limited power in this case. Nevertheless it is a circumstance that will throw light upon a will of doubtful construction. But in this case the nature and extent of the power are so restricted that it cannot have a controlling influence.

It is quite possible, in the case last supposed, in default of children and an appointment by will, there being no provision for such a contingency, that in order to avoid intestacy we might hold, in view of the authorities cited, that she took an absolute estate.

But the serious obstacle to our coming to that result is the fact that the testator has provided for just that contingency, and has directed the trustees to deliver over that portion of his property to her heirs at law. But not, be it remembered, to her heirs at law generally. It is to be divided among them according to the then “present statute of distributions.” Not the statute in force at the time of Margaret’s death, but the statute in force at the time of her father’s death, or possibly at the time when his will was executed—thirty years or more before her death. Now, suppose that during that time the statute of distributions in force when Elnathan Atwater’s will took effect had been repealed, and an entirely different rule of descent had been substituted. Can there be any doubt that the repealed statute would furnish the rule for distributing this portion of his estate among Margaret’s heirs ? If so is it not very clear that they would take as legatees of Elnathan and not as heirs at law of Margaret? We think the construction of the will must be the same whether the statute is changed or not. The introduction of that one word “ present ” into the will was a slight circumstance, but slight circumstances are often significant and not to be overlooked in the construction of wills of doubtful meaning.

Again. Could Margaret Atwater in her lifetime have sold the trust estate and given a good title ? Why not, if she had power to make a testamentary disposition of the estate otherwise than by an exercise of the power conferred upon her in her father’s will? A sale, if effectual, would have destroyed the claim of the heirs under the will, would have made it impossible for the trustees to obey its plain directions, and would have defeated the manifest intention of the testator.

A brief reference to some of the authorities cited will close this discussion.

In Mayer v. Townsend, 3 Beavan, 443, the testator directed his trustee to raise ¿65,000 for his daughter Elizabeth, “then upon trust to place his daughter’s legacy at interest on government or real security,” and to pay the income to her for life to and for her sole and separate use and benefit, free from the debts or control of any husband with whom she might marry. At her death he directed that the legacy so given should be. equally divided between ber children, subject to a provision that she might by will give her husband a life estate in the fund. The daughter never married, and the will did not provide for the contingency of her dying without issue. It was held that the limitations imposed upon the estate never having taken effect, the- estate remained absolute in hex*, and that hex’ executor was entitled to it.

In re Sidney Hall Estate, 37 Law Times, N. S., 457. In that case it was held that “where there is an absolute gift to children, followed by a direction that the daughters’ share shall be settled on themselves for life, with remainder to theii children, the daughters’ interests are only cut down for the sake of the children, and any daughter who dies without issue takes her share absolutely.”

The same question ax’ose and was decided in the same way in Whittell v. Dudin, 2 Jac. & Walk., 279. The same principle is recognized in Loring v. Elliott, 16 Gray, 568. See also Vernon v. Vernon, 53 N. York, 351.

The distinction between those cases and the present is obvious. In none of them was there any disposition of the estate in default of children. If there had been we cannot assume that the courts would have disregarded it.

Our conclusion is that it is reasonably certain that Elnathan Atwater intended, in the existing state of things, that the estate in question should go to the persons who are Margaret Atwater’s heirs, as his legatees.

The Superior Court is advised to render judgment for the appellees.

In this opinion the other judges concurred.