Carpenter v. Perkins , 83 Conn. 11 ( 1910 )

By the provisions in the will for a transfer by the trustee, on the death of either daughter, to her children "to be to said children respectively, and to their heirs, administrators and assigns forever," a transfer of an absolute estate in the personalty and a fee simple in the realty was intended. The words "heirs, administrators and assigns" must be taken as words of limitation. To read them as words of purchase is inadmissible, since it would make the remainder in their favor void, under the statute of perpetuities existing at the date of the will and of the testator's decease. St. John v. Dann, 66 Conn. 401, 405,34 A. 110. The devise in the codicil, to the trustee, in favor of "Nancy W. Mason and her heirs, to be held, managed and disposed of in the same manner as the estate given to him in trust by my said last will," manifestly requires the same construction.

If there were any doubt otherwise as to this point, it would be removed by the express provision as to an estate in fee in case of the death of a daughter leaving no children, in which event the future income of her fifth is to go to the surviving daughters, "and the fee to their children when entitled to receive the same."

Under the rule that the law favors the early vesting of estates, the interests in remainder of the children of Mrs. Whitaker and Mrs. Perkins became vested in them immediately upon the testator's death, so far as to give to each a transmissible estate.

The children of Mrs. Whitaker had a vested remainder in the fifth of which she had the life use, although it was subject to a condition subsequent, namely, the event of their dying before her. Gray on Perpetuities (2d Ed.) § 102.

They also had a vested interest by way of a contingent remainder in a part of the fifth of which the life use was left to Mrs. Mason; that is, their interest was so far vested as to be transmissible, though it was defeasible by her death leaving surviving children. St. John v. Dann,66 Conn. 401, 409, 34 A. 110. When she died, leaving no children, the contingency disappeared and the estate became vested and absolute in the two children of Mrs. Whitaker who then survived, and in the estate of their deceased sister, Mary A. Mason. Johnson v. Edmond,65 Conn. 492, 499, 500, 33 A. 503; Ingersoll v. Ingersoll,77 Conn. 408, 410, 59 A. 413; Perry v. Bulkley, 82 Conn. 158,168, 72 A. 1014.

The original interests in remainder of Mrs. Perkins' children in the fifth of which Mrs. Mason had the life use were, subject to the same contingency, vested in like manner.

The fact that the testator made the proportion of each child of Mrs. Whitaker or Mrs. Mason subject to the will of the mother, did not vary the result. Each child would take something, be his proportion large or small; and even had this not been so, the estate would have been — so far as this power of appointment was concerned — simply defeasible, though vested. Mallory v. Mallory, 72 Conn. 494,500, 45 A. 164.

The interests in remainder of the children of Nancy W. Mason, who were living at the testator's decease, so far as concerns their succession to the entire trust fund of which she had the life use, were also vested in them so as to be transmissible; but the title transmitted was a defeasible one, and their death before hers defeated it. Ingersoll v. Ingersoll,77 Conn. 408, 59 A. 413.

So far as concerns the provision for the succession on the occurrence of the death of a daughter without leaving children surviving her, the scheme of distribution prescribed in the will had an alternative operation, which gave the fifth of the estate, now in question, if Mrs. Mason left children surviving her, to them; but if she left none, it was to go for life to the surviving daughters of the testator, one moiety to each for her life, with remainder to her children.

The use of the word "moiety" is here controlling. One half, no more and no less, in case of the death of a daughter leaving no children surviving her, is given to each of the other daughters and their children. The testator, when he drew his will, must have contemplated as possible the death of two of his three daughters without leaving surviving children, but he did not provide that in such event the whole of the fifth of which the last to die had enjoyed the use, should go to her who would then be the sole surviving daughter, and to her children. The will, accordingly, should be read as if it provided that in case either of the testator's daughters should "die without leaving children, then her portion" should be divided into two equal parts, one of which should go to each of his two other daughters for life, with remainder to her children in fee.

There was therefore no interest whatever in the children of Mrs. Mason, who died before her, in the fifth now in question, after her decease. So the will is written and, as written, it must be given its legal effect.

In view of the circumstances surrounding the testator, and his intent to provide for both children and grandchildren, the reference to the death of a daughter without leaving surviving children, must be read as embracing such a death whether occurring before or after his own.Hollister v. Butterworth, 71 Conn. 57, 60, 40 A. 1044.

None of these conclusions bar the claims of the children of Mrs. Perkins. The codicil was written after her death. The will, as well as the codicil, therefore, speaks from that time, and the terms of the codicil clearly indicate that the testator intended her children to take the same estates as if she had died after him.

There is nothing in Bristol v. Atwater, 50 Conn. 402, which militates against the views which have been expressed. There a devise, subject to a life estate in S, to her children, if she leave any surviving her, but if she leave none, to the testator's other children or their issue, perstirpes, was held not to vest any transmissible estate in a child of S during her life; but we relied largely on the fact that whether this child or his child or grandchild was to take on the contingency named was wholly uncertain, and observed that had the remainderman been definitely ascertained a different question would have been raised.Beckley v. Leffingwell, 57 Conn. 163, 165, 17 A. 766.

In Ingersoll v. Ingersoll, 77 Conn. 408, 59 A. 413, we held that a bequest in remainder, after a life estate, to C, if living at the death of the life tenant, created a condition precedent. The will in the case at bar differs in that the bequest in remainder is absolute, though qualified by a subsequent provision, which, as we interpret it, is so expressed as to constitute a condition subsequent. Gray on Perpetuities (2d Ed.) § 108.

But two descendants of the testator survived Mrs. Mason, namely, Mary E. Perkins, a child of his daughter Mrs. Perkins, and Harriet V. Whitaker, a great-grandchild of his daughter Mrs. Whitaker. The latter is not a beneficiary under the will. Subject to the life estates, the residuary fund was given to the children of the testator's daughters. At its date they all had children living, and there is nothing to indicate that he used the term with the intention of including his remoter descendants. It must therefore be given its primary legal meaning. Ruggles v.Randall, 70 Conn. 44, 48, 38 A. 885.

The remainders in favor of children were "to be to said children respectively, and to their heirs, administrators and assigns forever." It was not, therefore, one of those class gifts under which, on the death of a member of the class before he came into the enjoyment of the estate, his interest would pass to the survivors. Each member of the class took a several interest which, on his death, became part of his estate.

It follows that one moiety of the fifth of the estate of which Mrs. Mason had the life use, on September 30th, 1908, when she died leaving no surviving children, became absolutely vested, one third in Mary E. Perkins, the sole surviving child of Elizabeth M. Perkins; one third in the estate of her brother Francis W. Perkins, deceased; and one third in the estate of her brother Edmund Perkins, deceased; and that the other moiety became thus vested in the personal representatives of the three deceased children of Mrs. Whitaker who were living at the decease of Smith Wilkinson, one third in the estate of Elizabeth H. Mason; one third in the estate of Horace W. Whitaker; and one third in the estate of Mary A. Mason.

In some of the briefs on which this cause was submitted, a question is raised as to those entitled to the ultimate benefit of what is thus to come to certain of these estates. Our advice has not been specifically asked as to any such point, nor, had it been, would it have been given in a proceeding of this character.

Those entitled to the fund are entitled to it as it is. The increase in its value added to the capital, not the income.Boardman v. Mansfield, 79 Conn. 634, 66 A. 169.

The Superior Court is advised to enter a judgment in conformity with this opinion.

No costs will be taxed in this court.

In this opinion the other judges concurred.