Newman v. Jennings , 90 Conn. 685 ( 1916 )

It is clear that under the provisions of the fourth clause of the will in question, those persons and those alone are entitled to take in absolute ownership the rest and residue of the testatrix's estate therein disposed of, who satisfy her description of the beneficiaries of it. Whatever vesting in interest there may have been in any person or persons upon the testatrix's death, or thereafter, had become divested at the time of the death of her husband, the life tenant, in so far as inconsistent with the taking in possession and enjoyment as provided. Allen v. Almy, 87 Conn. 517,523, 89 A. 205; White v. Smith, 87 Conn. 663, 672,89 A. 272. That provision is that, following the husband's death, a division should be made among the children of her two brothers, Charles and Joseph, "so that each of said children then living, or the representatives of any such child who may be deceased at that time, shall have an equal share of the same, to be theirs respectively forever." The six children of Charles are now living. They concededly are entitled to share in the division. The two children of Joseph predeceased the testatrix's husband, leaving no lineal descendants. The appellant Newman is the husband, sole legatee and executor of the will of one, and the administrator of the intestate estate of the other. The question presented for our consideration thus becomes, in effect, resolved into one as to whether or not the testatrix's gift in possession and enjoyment, expressed as above, includes or excludes the appellant Newman in either of the capacities in which he appears.

The answer to that question is to be found in the meaning which the testatrix intended to attach to the word "representatives," as used by her in directing the division upon her husband's death. The terms "representatives," "legal representatives," and "personal representatives," as used in connections like the present, have no precise and determinate meaning. The meaning to be attached to them in a given will is to be determined by the testator's intent in their use as gathered from the language of the entire instrument read in the light of relevant circumstances. Staples v. Lewis,71 Conn. 288, 290, 41 A. 815; Johnson v. Edmond,65 Conn. 492, 498, 33 A. 503; Dickerman v. Alling,83 Conn. 342, 345, 76 A. 362.

An examination of this will discloses an intent upon the part of the testatrix to have her estate go to her kin represented by her nephews and nieces. It also appears that her scheme of distribution among them was one of strict equality. In the execution of this plan and purpose of equal distribution, it was natural that the testatrix, in contemplation of the possibility that some one or more of the nephews and nieces might die before her husband, should provide a substitutionary gift in that event, and that such gift should take the form of one substituting the children or lineal descendants of the deceased for the deceased, thus enabling the stock of that nephew or niece to benefit by the will to the same extent that the deceased would have benefited if alive. Thus would the testatrix's estate be preserved to her kin and the fullest measure of equality be accomplished. The construction contended for by the appellants would lead to a diversion of a part of the testatrix's property to strangers to her blood and perhaps to her personally, and such a result was one to be readily anticipated by the testatrix if she used the word "representatives" in any other sense than as designating lineal descendants. It is scarcely probable that such a diversion was within her purpose. We are of the opinion that by representatives of the deceased nephews and nieces she meant lineal descendants, and that her will should be so construed. Such construction is not an uncommon one. ConnecticutTrust Safe Deposit Co. v. Hollister, 74 Conn. 228,231, 50 A. 750; Miller v. Metcalf, 77 Conn. 176,181, 58 A. 743. The right to share in the ultimate division in absolute ownership is thus confined to nephews and nieces who should be living at the decease of the testatrix's husband, and the lineal descendants of any who should have died leaving such descendants. Those nephews and nieces who were the children of the brother Joseph having died childless before the husband's demise, the estate is to be divided, as the Court of Probate ordered it to be divided, among the six children of Charles, all of whom are now surviving.

There is no error.

In this opinion the other judges concurred.