Willis v. Hendry ( 1940 )

In this case the trustees under the will of Friend A. Russ are seeking its construction and advice as to their duties. The relevant portions of the will are summarized in the footnote.¹ In all, some thirty-seven questions are propounded in the reservation and many of these are predicated upon future contingencies which may never arise. Thus several questions are asked as to the right of the trustees to lease the premises referred to in the fourth article of the will, which the testator's wife is given the right to occupy but which, if she so elects in writing, are to be sold. She now occupies the premises and nothing in the record indicates that she does not intend to continue to do so. Several other questions concern the rights of the wife of the testator's son John under subdivision "C" of the ninth article; her rights are predicated upon her surviving his death, and whether she will survive or not of course cannot be known. It is not the function of this court to give advice as to contingencies which may never happen, where there is no apparent present need of so doing. Russell v. Hartley, 83 Conn. 654, 665, 78 A. 320; Holmes v. Connecticut Trust Safe Deposit Co.,92 Conn. 507, 512, 103 A. 640; Gorham v. Gorham,99 Conn. 187, 195, 121 A. 349; Foley v. Hastings,107 Conn. 9, 16, 139 A. 305; see Moeller v. English,118 Conn. 509, 513, 173 A. 389. We shall, therefore, confine our consideration to such questions as are properly presented upon the statement of facts and as to which there appears some present need for their determination.

We are asked whether it is the duty of the trustees to insure the premises given to them in the fourth article against loss by fire, and, if so, whether the premium should be apportioned between the widow and the remaindermen. It is the duty of the trustees to exercise that care and prudence which an ordinarily prudent person would who was entrusted with the management of like property for another. Reiley v. Healey, 122 Conn. 64, 71, 187 A. 661. It is today a general custom among prudent business men to insure buildings in their charge against loss by fire; and ordinarily it is the duty of trustees holding property for remaindermen to see that such provision is made. Garvey v. Owens, 12 N.Y.S. 349, 350; Re Gamble, 57 Ont. L. R. 504; Restatement, 1 Trusts, 176; 2 Scott, Trusts, 176; 3 Bogert, Trusts Trustees, 599. We are not informed of any facts in this case which would make inapplicable this rule. The premises are not to become a part of the residuary trust in the will until the widow dies, and, so long as she occupies them, the trustees are without any income from the property with which to pay such charges. The apparent intent of the testator was that the widow should bear all ordinary charges incident to the maintenance of the property so long as she lives on it, and the word "upkeep" is to be so construed. This case is not like Central Hanover Bank Trust Co. v. Nesbit,121 Conn. 682, 689, 186 A. 643, for there the trustees were specifically charged with the payment of insurance premiums as well as the ordinary expenses for "upkeep." In the absence of any facts taking the case out of the general rule, we advise that it is primarily the duty of the widow to insure the buildings; but if she fails to do so, the trustees should insure them and charge the premiums against her. Should the term of any policy run beyond the life of the widow, the portion of the premium representing the period thereafter would be a charge upon the trustees and the widow's estate would be entitled to reimbursement to that extent.

Most of the questions propounded arise under the ninth article of the will, and outstanding among them is the question whether the executors and trustees should set up separate trust funds out of the proceeds of each of which the gifts of income should be paid. The provisions of this article make it obvious that the testator was thinking primarily in terms of income. It is only when the specific gifts of income can no longer operate that his mind appears to have turned to the disposition of the fund or funds from which that income is to be derived. He clearly did not think through the method by which this purpose was to be accomplished. He undoubtedly had a more or less indefinite thought that the residuary estate should be divided into separate parts, with a view to producing the gifts of income he made to each of his beneficiaries. But it is noticeable that nowhere in this article is there any express direction that the executors or trustees shall set up separate trusts from which the income is to be paid; it is noteworthy that, in making the gifts to his wife and son, it is 30 per cent of the entire income which he gives, not the income of 30 per cent of the estate; and there are provisions which indicate that the thought he had was at best unformed. He clearly did not visualize certain results not consonant with his dominant purpose which might follow from a division of his estate into separate funds. Thus in the case of the gifts of income in subdivision "A" there can be no doubt that the testator meant that each of the persons named should get each year the exact sum given them, subject only to a possible reduction in the event "that the income of the entire estate should fall below $55,000." Yet it may be if a separate fund were created from the income of which each of the payments was to be made, a fall in the income of the fund might prevent full payment to the beneficiary, and, on the other hand, if the income of such fund should exceed the amount of the payment fixed, there is no provision in the will for the disposition of that excess; and in the case of the gifts to the wife and son of 30 per cent of "the entire net income," the amount which they would receive from a separate fund set up for each would almost surely fluctuate from year to year and it would be extremely difficult, if not impossible, for the trustees to set apart at the settlement of the estate an amount which would produce the income to which each was entitled. In both these provisions if the income from the portion set apart to provide for these gifts exceeds the amounts given, no specific provision is made for the disposition of the excess and it would be left to pass under the gift of "the entire remainder of said income" to the daughter.

The provisions of the eleventh article, as to which we are asked some questions, are significant with reference to the matter we are discussing. In that article the testator directs his executors to pay from his estate all transfer or inheritance taxes which may be imposed upon any "devise, legacy or annuity herein contained" and provides that they are not to be payable to or paid by any "devisee, legatee or annuitant herein named," and, further, that the trustees' commissions and expenses shall not be charges upon any of the "annuities or bequests hereinbefore mentioned but paid from my estate." In the portion of the will preceding the ninth article, aside from provisions concerning the cancellation of sums owed to him by his son and daughter by the application of collateral which he held, he makes a few relatively small bequests, one to a nephew and the others to persons apparently not related to him. It is very unlikely that he would intend to free these beneficiaries from the charges mentioned in the eleventh article but impose them upon the share of his estate which he gave to his wife, son and daughter. In determining whether the gifts to the "annuitants" should be reduced he speaks of the total "net income" of the estate, and similarly in the gifts to his widow and son he gives to each a percentage of the "entire net income." Again he expressly provides that the small "annuities" created by subdivision "A" of the ninth article should not bear those charges and it would not be natural for him expressly to exclude the small gifts to these "annuitants" but leave them to be met from the portion of his estate given to his wife, son and daughter. It is to be noted, also, that in subdivision "A" of the ninth article he refers to the "annuities" as "bequests." All the provisions by way of legacy or bequest before the ninth article would be at once payable and the commissions and expenses of the trustees under the trust, which may run on for many years, could not have been intended to be imposed upon them. Such commissions and charges would ordinarily be payable from income, not principal; Bridgeport-City Trust Co. v. First National Bank Trust Co., 124 Conn. 472, 200 A. 809; see General Statutes, Cum. Sup. 1939, 1301e; and the use in this article of the words "paid from my estate" means no more than that they are charges against the estate as a whole rather than against any parts of or interests in it which are given to particular beneficiaries. Clearly his intention was that the expense of administering the trust should not fall directly on the gifts of income which he has made, but he meant that those charges should be paid from the income of the fund as a whole. The division of the residue of the estate into separate trusts from the incomes of which the gifts to the beneficiaries were to be made, would mean that there would be no general estate left in the hands of the trustees against which their commissions and expenses could be charged.

There is a significant phrase in the fourth paragraph of subdivision "C" where he speaks of the principal of the trust fund "represented by three-fifths of the income." Moreover, in the provision of the thirteenth article, where he gives the executors and trustees a broad discretion in "distributing my estate or in forming any of the several trust funds herein created," he adds "at such times as in their best judgment it is desirable to do so," and this indicates that the formation of separate trusts may have been regarded by him as optional rather than imperative. If the trustees can preserve the residue as a single trust, separating from it, when the time to distribute any portion of the estate comes, such portion as would be "represented" by the share of income which the testator has given to a beneficiary, the difficulties we have suggested would be obviated. See Gorham v. Gorham, 99 Conn. 187,194, 121 A. 349. The will as a whole indicates that there was, in the mind of the testator, a definite intent to make certain gifts of income and a somewhat unformed thought that his estate should be divided into several trusts, but to give effect to the latter might to some extent defeat the former. "It is a well known rule in the construction of wills, that where the testator shows a particular and also a general intent, which are inconsistent with each other, the general intent will be established and the particular one disregarded, if the will can fairly be so read, considered as a whole." Walsh v. McCutcheon, 71 Conn. 283,286, 41 A. 813; Hurd v. Shelton, 64 Conn. 496, 500,30 A. 766; Pinney v. Newton, 66 Conn. 141, 152,33 A. 591; Lepard v. Clapp, 80 Conn. 29, 32,66 A. 780. The dominant intent of the testator should be given effect, and this requires that the residue be held as a single trust. Bell v. Towner, 55 Conn. 364,11 A. 185; Hewitt's Appeal, 58 Conn. 223, 232,20 A. 453.

The testator's daughter Helene having died and her daughter Mary having predeceased her, leaving no issue and not having exercised the power of appointment given her as to the share of the estate represented by the income provided for her, the right to the share of the residue represented by the income which the granddaughter would have received had she survived the daughter was vested in the United Hospital Fund and the Griffin Hospital. Johnson v. Webber, 65 Conn. 501, 514, 33 A. 506. The question arises whether they are entitled to immediate distribution of this portion of the principal of the fund. Basing their position upon the setting up of separate trusts, they claim an immediate distribution of only so much as will leave in the trust under subdivision "D" a fund sufficiently large to pay one-half the gifts of income in subdivision "A," but our conclusion that separate trusts should not be established removes the basis of that claim. The testator clearly contemplated that the Hospital Fund and the Hospital might become entitled to the shares of the principal represented by the gifts of income given to his granddaughters even as early as his own death because as to each he expressly provides that if the granddaughter predeceased himself and his daughter, then upon the death of the survivor of them the Hospital Fund and the Hospital should take. This, to be sure, would only happen after his daughter had died, and it may not have occurred to him that a distribution at his death or that of his daughter might seriously affect the amount of income paid under other provisions of the ninth article. However, this cannot change a clearly expressed intent in the will. Moeller v. Kautz,112 Conn. 481, 487, 152 A. 886; New Britain Trust Co. v. Stoddard, 120 Conn. 123, 126, 179 A. 642; Hills v. Travelers Bank Trust Co., 125 Conn. 640,646, 7 A.2d 652. The language of the will before us is clear and precise: if the contingency in question occurs, "then, I direct my trustees to pay" the share to the Hospital Fund and the Hospital. This is virtually the same language he uses in the case of other final distributions of any part of the principal of the fund and it is in sharp distinction to all the gifts of income to be effective before the time when such distributions are to be made. Any inference that might be drawn from the use of the phrases "entire net income received by my trustees annually from" or "the total net income of" and "the rest, residue and remainder of my estate," in subdivision "A" and "the entire net income" of my estate in subdivisions "B" and "C" cannot overcome the clear language of the gift to the Hospital Fund and the Hospital. The only possible conclusion is that they are entitled to immediate payment of the share represented by the gift of income to Mary.

The Hospital Fund and the Hospital cannot be charged with the payment to the beneficiaries of the trust of income received upon the amounts so distributed, for that would clearly derogate from the nature of the gifts which the clear intent of the testator expressed in the will makes absolute. The present distribution of a portion of the principal will, however, not only decrease the amount of the income available for payments to the beneficiaries but would also, unless proper provision is made, directly affect the basis upon which the amount to be paid to the "annuitants" and the widow and son is to be determined. In making the provisions for these legacies, the testator clearly had in mind that the entire residue of his estate would continue in the trust and planned his scheme for the distribution of income accordingly. The relative amounts to be paid those who are to receive the income should not be affected by the present distribution of a portion of the fund. In order to give proper effect to the provision that if the total net income from the estate is not at least $55,000 the gifts to the "annuitants" should be reduced and in order to determine what is properly to be regarded as 30 per cent of the net income to be distributed to the widow and to the son, it is necessary that there be added to the income actually received from the estate after the distribution to the Hospital Fund and the Hospital a sum representing the income which would have been received had the portion distributed been retained as a part of the trust, and that the income of the fund be regarded as the total of the amount actually earned by the portion remaining and this additional sum. The amount of the latter should be determined by ascertaining the rate of income upon the portion of the fund remaining in the trust immediately after the distribution to the Hospital Fund and the Hospital, which would produce the income actually earned by the fund left in the trust and by applying that rate to the portion of the fund distributed as of that date. From the amount of the total income as thus ascertained should be deducted the actual charges of the trustee, increased by a sum representing any additional charges which would have been incurred had no portion of the fund been distributed, ascertained by a method similar to that by which the income to be added to that actually earned is fixed. After the deduction from the income so determined of the amount of charges so ascertained the balance will represent the total net income upon the basis of which is to be determined whether, as regards the "annuitants," the total net income of the trust is at least $55,000, and the share of the income actually earned to which the widow and son are entitled by virtue of the provision that they each receive 30 per cent of the total net income. The balance of the net income actually earned is then to be paid to the surviving granddaughter. The determination of the payments of income in this way does not run counter to the testator's intent as expressed in the will, but as nearly as may be effectuates the plan he had in mind. We applied a like method in First National Bank Trust Co. v. Baker, 124 Conn. 577, 594, 1 A.2d 283.

Where distributors are appointed by a court of probate to divide an estate, they proceed upon the values determined by them as of the date of the distribution; and, in Chase National Bank v. Schleussner,117 Conn. 370, 375, 167 A. 808, where certain legacies were to be paid if the "net estate" exceeded a certain amount and the executor was given a broad discretion in determining the value of the estate, we held by analogy that the values were to be determined by them in the first instance as of the time when their account preliminary to the distribution of the estate was filed in the Court of Probate. In Callahan v. Peltier, 121 Conn. 106, 114, 183 A. 400, where the testator made gifts at the termination of a trust to be paid in cash or its equivalent, we held that the value of property distributed was to be determined, not as of the time of the termination of the trust but at the time the distribution was made. A like rule would apply in this case. In determining the portion of the fund now to be turned over to the Hospital Fund and the Hospital, the division should be made upon the basis of values as of the time of the distribution.

With reference to the gifts of income in subdivision "A" of the ninth article, we find nothing in the will which prevents the trustees from making payments to the beneficiaries without waiting until the end of the year to determine whether the income of the estate is at least $55,000, provided those payments be such that the total amount received by each beneficiary in any year does not exceed that to which he is entitled as determined by the annual income of the estate as a whole. In any year when the income falls below the amount stated as determined by the method above outlined, the amount of income specified for each surviving beneficiary is subject to a proportionate reduction.

The testator clearly expressed his intention in subdivision "C" as to the income given to his son. Thirty per cent of the entire net income not exceeding $25,000 is to be set apart for him each year and the sum so set apart is all that can be used or accumulated for him. So much thereof as the trustees deem necessary for his support and maintenance is to be paid to him and the remainder of the sum so set apart is to be retained by them and accumulated for him. In no event can more than $25,000 be set apart for him in any one year and only the unused portion of that sum can be retained and accumulated. Any part of the accumulation so made can be paid to him whenever the trustees deem it necessary for his support, without regard to the $25,000 limitation. The testator intended that any sums to which the son is entitled are to be paid to him, so that he, and not the trustees, would be in control of their expenditure. Bridgeport-City Trust Co. v. Beach,119 Conn. 131, 135, 174 A. 308.

We are asked certain questions as to the validity of the gift to the wife upon the son's death and of the gifts in remainder to his issue. Answers to these questions may become academic in certain respects if the wife does not survive her husband but it is pressed upon us that a failure to determine them will seriously interfere with the settlement of the estate of the granddaughter who has died, and as our decision will give to any unborn issue coming within the purview of the provisions all rights which they could claim, we have decided to answer the questions. Wilson v. D'Atro,109 Conn. 563, 569, 145 A. 161. The testator provided that upon the death of his son, or if the son should die first upon his own death, the trustees are to pay two-fifths of the income which the son would have received had he lived to "the wife of my said son" provided that she be living with him at his death; that upon her death the designated part of the income should be paid to the "lawful issue" of his son for a period of twenty-one years in equal shares per stirpes and not per capital and that at the expiration of that period the principal is to be paid to "the lawful issue" of his son then surviving per stirpes and not per capita. Then follow provisions as to the disposition of the share of the income given to the wife and the remaining three-fifths of the income to which the son would have been entitled, which are designed to meet various situations that might arise should she predecease the testator or the son or not be living with the latter when he died, and in certain of these the income is given to the son's "lawful issue" for a period of twenty-one years, the principal to be paid at the expiration of that time to such of them as then survived. If in these provisions the wife of the son referred to was the wife he had when the will was made and the testator died, none of these gifts would violate the rule against perpetuities, for they would vest, at the latest, at the end of twenty-one years after the death of a person living when the testator died. Union New Haven Trust Co. v. Sherwood, 110 Conn. 150, 159, 147 A. 562. The determining question is then, whether or not the testator intended by the references to "the wife" of his son, the wife he had when the testator died, or meant any wife whom he might thereafter marry.

In the article of the will in question the testator twelve times uses the words "the wife of my son" or "the wife of my said son." The use of the word "the" in itself carries with it the implication of a reference to a definite person, and had the testator meant any wife his son might marry after the former's death he would have been more apt to say "a wife" or "any wife"; and the force of his use of the word "the" gathers weight from its repetition so many times. It appears in the agreed facts that the son had married his wife long before the death of the testator, that the testator was very fond of her and that he recognized her as having considerable ability in managing his son's affairs. It is certainly she whom he would naturally have in mind in making the provision in question. It is true that only in her case did the testator omit to give the name of a living beneficiary referred to in the will, but this fact is open to so many explanations that it affords little ground for a conclusion that he was not thinking of a particular person when he spoke of "the wife" of his son. In Beers v. Narramore, 61 Conn. 13,19, 22 A. 1061, we construed a provision for the widow of the testator's son where the words most often used were "his widow" to mean his wife at the time of the testator's death, not any wife he might marry in the future; we said that the word "widow" as used in the will was equivalent in effect to the word "wife" and that, had the latter word been used "as there was then in esse a person fully answering to that description, and only one, such person must be understood as intended, although it is indeed possible that this person might die, and another person might afterwards, at a remote date, as suggested, be born, who in another generation might come to answer the same description." In Johnson v. Webber, 65 Conn. 501, 509,33 A. 506, we followed this decision and held that in a provision that if either or both of the granddaughters of the testatrix died leaving "a husband" he should have a life use of certain property, the reference was to their husbands living at the death of the testatrix. See also Bridgeport City Trust Co. v. Alling, 125 Conn. 599,602, 7 A.2d 833. In Greenwich Trust Co. v. Converse, 100 Conn. 15, 122 A. 916, we held that in a provision for the wife of the testatrix's son, to come into effect at his death, the wife intended was not the one he had when the testatrix died but one he married after a divorce from the woman who was his wife at that time; but we placed that construction (p. 27) upon the fact that the provisions were "for the benefit of the wife as one of her son's `family'" and not for the personal benefit of the first wife; and it may be added that the will then before us, in distinction to that which we are now considering, provided that upon the death of the son "if he leave a wife him surviving" she was to have the benefit of the fund. Under this construction of the will, the wife who was intended might not have been living when the testatrix died, and so we held in Greenwich Trust Co. v. Shively, 110 Conn. 117,124, 147 A. 367, that gifts over at her death to the issue of the son might offend the rule against perpetuities and so were void. In the will before us, the gift of income to the son's wife and the gift of the income for a period of twenty-one years and at the expiration of that time of the principal to the son's issue are valid.

The trustees made the last regular quarterly payment of income to the beneficiaries on February 9, 1939. The testator's daughter died on April 4th of that year. On that day the trustees had in their possession $9730.62 of income which they had collected from the investments of the estate, and $5369.35 of income had accrued on those investments but had not actually been collected. On February 27th of that year a dividend was declared on certain stock of the Consolidated Edison Company of New York, Inc., which was held by the trustees, payable on May 9, 1939, to stockholders of record on March 31, 1939. We are asked whether the estate of the daughter is entitled to receive any portion of these sums. The following facts are stated: "The trustees have never set aside nor appropriated any income to or for Helene Russ Warren other than the payments from income to her, but at the end of each year have paid over to her all income accruing for her benefit under the terms of the will. Neither have said trustees reserved or determined to withhold from her any part of said income that might otherwise be payable to her, because they deemed some part thereof unnecessary for her support, nor had they determined so to withhold from her any part of the income to be collected or to accrue between the dates of February 9, 1939, and May 9, 1939." These facts bring the case within the decision of Greenwich Trust Co. v. Shively,110 Conn. 117, 121, 147 A. 367, rather than that of Cromwell v. Converse, 108 Conn. 412, 143 A. 416, and, in accordance with the former, we advise that the trustees have the right to pay to the executors of the daughter's estate so much of the share of the income which she would have received had she lived as is necessary to pay any debts or obligations which they deem were properly incurred by her for her support during her life. The case is one of a spendthrift trust with a discretion in the trustee, and falls within comment "b" under 158 of the Restatement of the Law of Trusts instead of within paragraph (2) of that section; but for the reasons stated in Cromwell v. Converse, supra, we cannot follow the broad statement in that comment, that in the case of such a trust the executor or administrator of the beneficiary's estate is not entitled to the income.

In Bridgeport trust Co. v. Marsh, 87 Conn. 384,398, 87 A. 865, we held that in the case of bonds, as in that of other interest-bearing debts, income received after the decease of a testator was apportionable between the principal of a trust fund he established and the income from it, and the same principle applies as regards income which had accrued at the death of a life tenant, so that his estate becomes entitled to it, with a limitation in this case growing out of the nature of the daughter's right to receive the income. Chase National Bank v. Schleussner,117 Conn. 370, 377, 167 A. 808. It is pointed out in Bridgeport Trust Co. v. Marsh, supra, that dividends on stock are not, under the law of this state, which follows the so-called Massachusetts rule, apportionable until they become a debt due the stockholder; Smith v. Dana, 77 Conn. 543, 60 A. 117; Richter Co. v. Light, 97 Conn. 364, 366,116 A. 600; 12 Fletcher, Corporations, 5393; and to this extent our law would control the question in the case before us. It is also our law that in declaring a dividend, if it is made payable to stockholders of record on a certain day, a debt to them then arises; Richter Co. v. Light, supra; but in this respect the situation would be controlled by the law of the state of incorporation. Union New Haven Trust Co. v. Watrous,109 Conn. 268, 279, 146 A. 727. In the case before us, both the declaration of the dividend and the day for determining who were the stockholders of record passed before Helene's death, and under our law her estate would be entitled to the dividend. But we are not informed of the state under whose laws the corporation exists, and consequently are without adequate basis to answer the question whether her estate was in fact entitled to them.

The questions we have decided to answer are stated in the footnote.