Pendleton v. Kinney , 65 Conn. 222 ( 1894 )

Baldwin, J.

The testator gives to his nephews, Henry and Luther, the use of all his property, both real and personal, “ during their lives, to be divided equally between them, and after the death of either of them, the entire use, income and profit to the survivor during his life subject to the conditions hereinafter stated.” His intention can be best effectuated by treating this as a class gift in joint tenancy. It is an estate, not to each for his life, but to both “ during their lives,” and there is an express provision for survivorship upon the death of either. The will refers to it six times by the description of “life estate,” and never uses the term “life estates.” The conditions of the devise also impose joint obligations. Each was not to perform half of these, but both were to perform the whole. Bolles v. Smith, 39 Conn., 217, 220. It follows that by the refusal of Henry M. Kinney to accept the life estate, it became, in effect, an estate in favor of Luther Kinney, alone.

The period for which it was limited to endure, however, was not abridged, by Henry’s declinature. The first object of the testator was to provide sufficient funds to build a good house upon the Griswold farm, to cost not over $1,500; to satisfy legacies amounting to $1,550, given to his heirs at law other than the two nephews, with an annuity of $100 to a brother, for life; and to put up family monuments at an expense not exceeding $350. To this purpose he devoted the entire net income of his estate during the lives of Henry M. and Luther Kinney. As the annual income of the property is not likely to exceed $325, it was necessary to provide for a term of some considerable length, during which it should be applied to the uses specified ,• and the limitation of this term for two lives, was not simply for the benefit of the life tenants. In substance, they were to take the estate in trust, until the charges imposed upon it were fulfilled. Perry on Trusts, Yol. I., §§ 95,121. In favor of one of the legatees, Mary Kinney, this trust must be continued to a period which may outlast the lives of both nephews; for she is to have it only if she calls for it within ten years after the testator’s decease.

The trust cannot come into active operation until the plaintiff has delivered over the estate to which it is to attach, to the trustees or life tenants. Until then, they are not called upon to perform any of the “ conditions ” or make any of the payments, specified in the will, for until then the fund upon which alone these obligations are charged does not come under their control. General Statutes § 577. There has, therefore, as yet, been no breach of condition, on the part of Luther Kinney. It is found that during his occupancy of the Griswold farm, since the testator’s death, he has not improved it in a good and husbandlike manner, nor kept up the fences, cut down the brush, and applied manure, in the manner required by the will “ during the continuance of said life estate.” But he has been in possession only as the tenant of the plaintiff, and with no more powers or duties than would have attached to any stranger in the same position. There has therefore been no forfeiture of the life estate in that farm.

Under the circumstances of this case, we think Luther Kinney is entitled to a reasonable time, after entry of the final judgment in this cause in the Superior Court, within which to give a probate bond agreeably to General Statutes § 559. Should he fail to give such a bond, within such time, it will be the duty of the plaintiff to apply to the Court of Probate for the appointment of a trustee to receive from him the personal estate and the possession of the real estate, to hold during the continuance of the life estate created by the will. Should both Henry M. and Luther Kinney die within ten years from the decease of the testator, and before payment of the legacy to Mary Kinney, the entire real and personal estate will remain affected by a trust in her favor, for the payment of such legacy if called for within said ten years. Should any of the other legacies or charges which are primarily payable out of the income of the life estate, remain unpaid at the decease of the survivor of the two nephews of the testator, they will also become a charge upon the entire real and personal estate. The remainder interest of Andrew Kinney can vest in possession only “after the termination of said life estate and the fulfillment of the above charges upon the income of said property.” They are to come out of the income, if the life estate endures long enough to produce funds sufficient for their satisfaction; but should it terminate, by the death of both nephews, before they are thus satisfied, the entire estate will be subject to a trust for their discharge.

The directions as to the cultivation and maintenance o£ the Griswold farm, which immediately precede the words “ if said life tenants fail to comply with the above conditions, then their life estate in said farm shall be forfeit,” constitute the “conditions” to which these words refer. It cannot reasonably be supposed that they embrace all the “ conditions” annexed to the life estate, since a breach of those would naturally entail a forfeiture of the entire estate, and not simply that of the farm. Should the life estate in the farm become forfeited under these provisions, the use and income of the farm, during the residue of the life estate, would belong to those dependent and neglected children who might be inmates of the New London County Temporary Home in Preston at the time of such forfeiture; and it would belong to them during said term, free of any trust for the payment of any legacies or charges. While such children may be persons not in being at the date of the testator’s death, or not the immediate issue or descendants of persons then in being, yet their description is such as to make the devise one for charitable purposes, and therefore not within our statute of perpetuities, as the intermediate estate in the life tenants is to persons in being at the testator’s death, and for a term which cannot exceed the life of the survivor of them. Storrs Agricultural School v. Whitney, 54 Conn., 342, 347 ; Woodruff v. Marsh, 63 id., 125, 132.

These conclusions render it unnecessary to consider several of the questions suggested by the complaint.

The Superior Court is advised, (1) that there has been no forfeiture of any life estate created by the will; (2) that the life estate left to Henry M. Kinney has been terminated, so far as any interest in him is concerned, but that the term of his life continues to be a measure of the continuance of the life estate created by the will; (3) that the legacies to Jane Loomis, Sarah M. Crocker, Nancy Kinney, John Caulkins, William Caulkins and Mary Kinney, are and will be a charge upon the life estate created by the will (except in case of a forfeiture of the life estate in the Griswold farm), during the joint lives of Henry M. and Luther Kinney, and, as respects that to Mary Kinney, until the lapse of ten years from the testator’s decease; and that except so far as the several payments required of the life tenants out of the income received by them may have been made during the existence of said life estate, they will upon its termination be payable out of the principal of the estate, and a charge upon the same, both real and personal; (4) that, in case of a forfeiture of the life estate in the Griswold farm by reason of a failure to improve it in a good and husbandlike manner, to keep up the fences, to cut the brushes, or to put on manure, all the use and income of said farm, during the balance of the term of said life estate, will belong to such dependent and neglected children as may be inmates of the New London County Temporary Home in Preston, at the time of said forfeiture; (5) that if Luther Kinney gives a probate bond agreeably to General Statutes, § 559, within such reasonable time as may be appointed in the judgment rendered in the cause, he will be entitled to the possession of the entire estate now in the charge of the plaintiff; and (6) that, if such a bond be not so given, the plaintiff should apply to the Court of Probate for the District of Stonington, for the appointment of a trustee to receive said estate, and to hold, manage and dispose of the same agreeably to the conditions and trusts imposed by the will upon the holders of the life estate created thereby.

In this opinion the other judges concurred.