Hartford-Connecticut Trust Co. v. Lawrence , 106 Conn. 178 ( 1927 )

Counsel for Mrs. Lawrence claim that "heirs" in Articles Third and Fourth should be interpreted in its primary sense — that is, one entitled to inherit real estate of a deceased person — unless the intent of the testatrix as manifested in the will be not to so limit it, while counsel for Mr. Chase reach the contrary conclusion, that "heirs" should not be interpreted in its primary sense unless the intention of the testatrix as manifested in the will be to so limit it, but should be interpreted to mean those who take under the statute of distribution. The weight of authority in this State supports the construction that "heirs" is to be given its primary meaning unless a contrary intention is manifested in the will when read in the light of the surrounding circumstances. CHIEF JUSTICE TORRANCE says, in Gerard v.Ives, 78 Conn. 485, 489, 62, Atl. 607: "In its primary and technical meaning in our law, the word ``heirs' is used to express the relation of persons to some deceased ancestor; and when it is used in a will, as here, to point out legatees or devisees, its primary legal meaning should be given to it unless it is clearly shown by legitimate evidence that the testator used it in a different sense. This is the settled rule of construction in this State." See also Hartford Trust Co. v. Purdue,84 Conn. 256, 258, 79 A. 581; Ruggles v. Randall,70 Conn. 44, 48, 38 A. 885; Nicoll v. Irby, 83 Conn. 530,534, 77 A. 957; Leake v. Watson, 60 Conn. 498, 508,21 A. 1075; Allen v. Almy, 87 Conn. 517, 522,89 A. 205; Harris v. Weed, 89 Conn. 214, 219, 93 A. 232. Our rule is unvarying that wherever the will of the testator makes manifest his intention in the use of "heirs" to be those who would take under the statute of distribution, such interpretation will in each case be given so as to effectuate the intention of the testator.Beardsley v. Johnson, 105 Conn. 98, 100, 134 A. 530; Beach v. Meriden Trust Safe Deposit Co., 98 Conn. 821,120 A. 607; Harris v. Weed, 89 Conn. 214, 219,93 A. 232; Allen v. Almy, 87 Conn. 517, 522,89 A. 205; Hartford Trust Co. v. Purdue, 84 Conn. 256,79 A. 581; Nicoll v. Irby, 83 Conn. 530, 534, 77 A. 958;Gerard v. Ives, 78 Conn. 485, 62 A. 607; Tingier v.Chamberlin, 71 Conn. 466, 469, 42 A. 718; Ruggles v. Randall, 70 Conn. 44, 38 A. 885; Leake v. Watson,60 Conn. 498, 506, 21 A. 1075.

Unless we can find within this will, read in the light of its surrounding circumstances, an intention on the part of the testatrix that by the use of "heirs" she meant those who would take under the statute of distribution, we should advise that the testatrix used "heirs" in its primary sense and therefore Mrs. Lawrence and not Mr. Chase is the sole heir of Mrs. Chase. There is nothing in the will nor in the facts stipulated to indicate that the testatrix intended to use the term "heirs" in any other than its primary sense. It follows that "heirs" as here used must be taken in its primary sense, since the will does not evince a contrary intention. The majority opinion states: "We have held, in effect, that the technical [primary] meaning will be given to the word if the intent of the testator to use it in a different sense does not appear." While the subsequent discussion does not specifically overrule this rule of our law, in effect it does, and as I understand it, holds that "heirs" when used in a will should be interpreted to mean those who take under the statute of distribution.

Let us assume that the majority opinion has changed our rule of law and that unless the will evinces a contrary intention, "heirs" when found in a will means those who take in the manner and share provided under the statute of distribution, and let us see where the law and the facts of this case take us. Mr. and Mrs. Chase having married after April 20th, 1877, the survivor, under General Statutes, § 5055, except in the cases mentioned in the proviso to this section, was entitled, in the event that the deceased spouse died testate, to the use for life of one third in value of all the real or personal property owned by the deceased spouse at his or her death, "but where there is no will, the survivor shall take such third absolutely, and if there are no children of the decedent or representatives of children, the survivor shall take all of the estate of the decedent absolutely to the extent of two thousand dollars, and one half absolutely of the remainder of said estate. . . . where the wife by will has devised or bequeathed a portion of her property to her surviving husband, such provision shall be taken to be in lieu of the share herein provided for, unless the contrary shall be expressly stated in the will, or shall clearly appear therein; but in any such case the party shall have his or her election whether to accept the provision of such will or take such statutory share, and such election shall be made in writing signed by the party entitled to make the same, and lodged with the court of probate," etc. There is no finding that Mrs. Chase died intestate. There is no finding that she died testate; nor is there a finding as to whether she bequeathed a portion of her property to Mr. Chase, nor, if she did, as to whether he made his election whether to accept the provision of the will or take the statutory share. It follows that Mr. Chase was not, upon the facts reserved, in the event that Mrs. Chase died testate, entitled to an aliquot part of the whole or a part of Mrs. Farrington's estate under the provisions of General Statutes, § 5055. That he was entitled, if Mrs. Chase died testate, in any event, to the life use of one third of her estate during his life, did not make him her heir. "But where by statute the husband or wife takes an absolute interest in the estate of the deceased consort, they come within the technical definition of ``heirs,' and if such was the manifest intention of the testator, such term will include a widower, or widow, as the case may be." 40 Cyc. 1463; 2 Alexander's Commentaries on Wills, § 852. An heir is one upon whom the law casts an estate of inheritance immediately upon the death of the testator. Brumley v.Brumley, 28 Ky. Law Rep. 231, 89 S.W. 182, 183;Korn v. Cutler, 26 Conn. 4, 6; Evans's Appeal,51 Conn. 435, 437. Ordinarily the word "heirs" in a will is a word of limitation and conveys the idea of a fee-simple estate. If Mrs. Chase died intestate Mr. Chase, under the statute of 1918, would take, as there were no children or representatives of children, $2,000, and one half absolutely of the remainder of his wife's estate. Under the 1918 statute Mr. Chase, if Mrs. Chase had died testate and was, as my associates contend, an heir, could at the most only receive the life use of one third of the estate bequeathed and devised to her, and if Mrs. Chase died intestate, they having no children or the representatives of children, he could only receive $2,000 and one half of the estate absolutely. It is obvious that he could not secure, whether Mrs. Chase died testate or intestate, the share of her estate which my associates determine belongs to him under the 1918 statute. My associates do not controvert this, but hold that the statute in existence at the decease of Mrs. Chase does not determine the share which her husband would take if she died intestate, but that the statute in existence at the date of Mrs. Farrington's death would govern, under which Mr. Chase took the whole of the estate of his wife. The amendment of 1921 added these words, at line thirteen of General Statutes, § 5055: "and if there are no children of the decedent or representatives, . . . and no parent, the survivor shall take all of the estate . . . absolutely." Public Acts of 1921, Chap. 221. The amended statute of 1921 could in no event be applicable unless Mrs. Chase died intestate. This is a fact which my associates assume is in the stipulated reservation, but which I have not been able to find in the record. Had the fact of intestacy been found, the amended statute of 1921 could not within our rule be held to be retroactive and apply to the situation created upon the death of Mrs. Chase in 1918. The presumption is that this statute was intended to operate prospectively. "They [statutes] should never be construed as having a retrospective effect," says JUSTICE PRENTICE, "unless their terms show clearly and unmistakably a legislative intention that they should so operate." Humphrey v. Gerard,83 Conn. 346, 352, 77 A. 65; Connecticut Light Power Co. v. Oxford, 101 Conn. 383, 126 A. 1; Hartford v. Poindexter, 84 Conn. 121, 79 A. 79. There is nothing in the language of this amendment or in that of its title which tends to indicate the legislative intention to make the statute operate retrospectively. The conclusion of my associates that this statute operates retrospectively could be reached only by disregarding the rule of universal statutory construction which we quote.

There is another reason which seems conclusive why this statute could not be held to be retrospective. My associates hold that Mr. Chase's rights as the heir of his wife came into existence upon the decease of Mrs. Farrington and not at the decease of Mrs. Chase. They reach this conclusion in dependence upon the rule of law that the will is to be read as if executed at the moment of the testator's death. That is the rule to apply were we considering the effect or operation of the will of Mrs. Farrington. Our present purpose is to search for her intention. That is not to be found as of the date of her death in 1925, but at the date of execution of her will. The construction of a will must necessarily be made as of that time and in the light of the circumstances surrounding its making. Her heirs are those in existence when she died. Under this will they took the interest given them by the will. We find the testatrix, in Article Third, specifically refers to the time of the death of either niece as prior to her own death. The residuary clause in Article Fourth does not specifically refer to either niece predeceasing the testatrix, yet when the two articles are construed together there can be no doubt that in both the testatrix was referring to the legatee or legatees in each, predeceasing her. The bequest or devise to the heirs in each instance was a substitutionary one. Every such bequest or devise takes effect upon the death of the prior taker. Schouler on Wills, Vol. 2, 6th Ed. § 1040, says: "Wherever there is a bequest, whether immediate or deferred, to individuals, it is a rule that, be the legacy immediate or by way of remainder, a gift over of the legacy or share of a legatee dying under specified circumstances, shall take effect if the event happens in the testator's lifetime. Thus, if the bequest is to A, but if he die under twenty-one, to B, and A dies, in fact, before the testator, the gift to B takes effect. . . . For the argument that there can be no legacy to any one until the will speaks, and consequently no substitution, cannot here avail." There are, as Schouler points out, exceptions to this rule, but the case before us does not come within them. Alexander's Commentaries on Wills, Vol. 2, § 582, states the rule to be: "In a gift to heirs by way ofsubstitution, the persons are ascertained at the death of him whose heirs they are, and not at the time of distribution." Gifts over upon the death of a beneficiary which are immediate gifts, such as those in articles Third and Fourth, take effect before the death of the testator. Walsh v. McCutcheon, 71 Conn. 283,41 A. 813. We said in Webb v. Lines, 57 Conn. 154,17 A. 90: "Whenever as here the devise of a fee in terms is followed by a provision for a devise over in case of the death of the first devisee, this last expression is held not to refer to death under all circumstances, and therefore not to be restrictive of the prior devise to a life interest, but to death under one circumstance, namely, death before that of a testator, and therefore to be a devise over in substitution only upon the happening of that event; and when the event and substitution become impossible the interest of the first devisee becomes absolute." The rule that in the case of a devise or bequest to A in fee and if he die without issue it shall go to B, refers to the death of A prior to the testator's death; it has no application where the prior estate is one for life in A, with remainder to B. Hollister v. Butterworth, 71 Conn. 57,40 A. 1044. The bequest in Article Third and the bequests and devises in Article Fourth (f) were substitutionary gifts and took effect in the heirs upon the death of Mrs. Chase and they were determinable as of that time and not at the death of the testatrix. The heirs of Mrs. Chase were those in existence when she died, for not until then could her heirs be known. Unless the will manifests the testatrix's intention that her heirs are to be determined as of a later date, they must be determined at the testatrix's death. My associates rely upon Ruggles v. Randall, supra, at page 48, in support of the position that "heirs" is to be construed as of the testator's death. This fails to note that we were then speaking of a direct bequest, not a substitutionary one. The bequest to Minerva Ennis was not a substitutionary one, but one "to the heirs of my niece," etc. The bequest to "Amanda Jewett . . . and [in] case of her death before me to her heirs," was a substitutionary bequest. The principle was applicable to the Minerva Ennis bequest; it would not have been applicable to the Amanda Jewett bequest, since it was a substitutionary bequest. Gold v. Judson,21 Conn. 616, construes a direct bequest, not a substitutionary one. The distinction we point out is a settled principle of testamentary law. If Mrs. Chase had died intestate, Mr. Chase might have been held to be the heir of Mrs. Chase, provided the will disclosed the intention of the testatrix to be that by "heirs" she meant those coming within the statute of distribution, in which event the share of the estate which he would have taken would have been that given by the statute of 1918, and not that given by the amendment of 1921, which could not have a retroactive effect. When the facts surrounding this testatrix at the time she executed this will are analyzed, they reveal the intention of Mrs. Farrington so clearly that it would not have been changed if the fact had been found that Mrs. Chase died intestate and as a consequence Mr. Chase been entitled to a distributive share of her estate under the statute existing in 1918, when Mrs. Chase died. There is not the slightest indication in her will that Mrs. Farrington intended that Mr. Chase should be one of her heirs. He was not a beneficiary by name. There is no finding that he was on terms of affection or even friendship with the testatrix, nor is there a finding of any business relation between him and the testatrix, or any service of any kind which he had rendered her. Her will discloses the objects of her bounty. Her own husband and her two nieces who were her next of kin, were her chief thought as she came to make her will. First she bequeathed $1,000 to each of her two nieces, Mrs. Chase and Mrs. Lawrence. Then she placed all the remainder of her property in trust with direction to the trustee to pay the net income thereof to her husband during his life. Upon his death she provided that a few specific legacies of no considerable value should be paid, and then the remainder of the trust fund should be equally divided between her two nieces who were her next of kin, and if either niece predeceased her, the share "to which such deceased beneficiary would have been entitled if living" should go to the heirs of the deceased beneficiary. None of her property was bequeathed or devised to her husband. Practically all of it went to the two nieces; if they survived the testatrix they would come into its absolute ownership; if either predeceased her the heirs of the deceased beneficiary would take her share. Her purpose was to give her property to her nieces, her blood relatives. The entire scheme of this simple will evidences an intention on the part of the testatrix to have her property go to her blood relatives. There was no one else in whom she manifested any interest except the few legatees of small legacies. Mrs. Farrington knew that Mr. and Mrs. Chase had been long married and were childless. She knew that Mrs. Lawrence had three children. These she might reasonably have anticipated were to be her only blood relatives in the event that Mrs. Chase died childless. Reading this will in the light of these circumstances, whom did the testatrix intend by the "heirs" of her niece? Whom would she, possessing the feelings of affection for blood relatives of the average person, prefer? The husband of Mrs. Chase, a nephew by marriage, with whom, so far as appears, she was upon no especial terms of affection and under no bond of gratitude for services performed in her behalf, or the three children of this loved niece, Mrs. Lawrence? Where would the ordinary testatrix wish her property to go? To those of her own blood is the inevitable answer. In construing wills we have held the kindred by blood are to be favored over kindred by affinity when there is, as in the present case, nothing to show a contrary intention on the part of the testatrix. Butler v. Flint, 91 Conn. 630,101 A. 19; Tingier v. Woodruff, 84 Conn. 684,81 A. 967. If Mr. Chase had been by statute made an heir of Mrs. Chase at the time Mrs. Farrington made her will and we were required to presume that she knew when she executed her will that the statute made him one of the heirs of his wife, we must also presume that she knew that under our law "heirs" when used in a will would be construed in its primary sense unless a contrary intention appeared in the will. No such contrary intention did appear in the will or in the surrounding circumstances. Nothing in the will remotely evidences that the testatrix intended Mr. Chase to be included among the heirs of Mrs. Chase. The fact that she left the will unchanged for seven years indicates that she was satisfied with it as it was then written, with its use of "heirs" in its primary sense.

I would answer: Questions one and two, that Florence W. Lawrence is the sole heir of Grace A. Chase.