Clark v. Baker , 91 Conn. 663 ( 1917 )

The disposing portion of the will under consideration is confined to a single sentence forming the second paragraph. In the first half of that sentence the testator used language apt for a devise in fee of realty and for an absolute bequest of personality. If the will had stopped at that point there could be no doubt that Jacob Baker, upon the death of his wife, became vested with the fee in her real estate and with the absolute ownership of her personal property. A devise in fee or absolute gift once made in terms may, however, be cut down to a lesser estate by subsequent provisions clearly indicating the testator's intent that the devisee or legatee should take by the will some lesser estate. Plaut v. Plaut, 80 Conn. 673,677, 70 A. 52. The subsequent language to have this effect must not be of doubtful meaning or uncertain in its indication of the testator's intent. Mansfield v. Shelton, 67 Conn. 390, 394, 35 A. 271; Strong v.Elliott, 84 Conn. 665, 671, 81 A. 1020.

The subsequent words in this paragraph, forming the second half of the sentence, fail to satisfy these conditions. They are expressive of the testatrix's wish and desire that Roy and Ethel should share that portion of her estate which her husband left unused, but fall far short of indicating a purpose on her part either to make such disposition herself, or to impose upon her husband a mandatory direction creative of a trust. It is to be noted that the gift to her husband is made to him, his heirs and assigns. With that fact in view it is especially difficult to say that the will clearly indicates a testamentary intent that the husband should not take a transmissible estate.

The facts concerning the relation of Ethel to the testatrix disclosed by the record are, indeed, very suggestive of the former's deserts, and strongly indicative that the ends of fairness and justice would have been subserved by some testamentary remembrance of her. Apparently Mrs. Baker had it in her heart that Ethel should ultimately profit by receiving some share of her estate should Jacob leave any unused. The difficulty of the situation is that such feeling on her part was not so adequately or clearly expressed that the law, with all of its liberality, can give it effect as a testamentary provision.

The testimony offered concerning Jacob's oral and written statements to Ethel, evidencing his understanding of his wife's will as giving him only a life estate with the remainder over in any unused portion to Ethel and her brother, was properly excluded. It was not competent evidence of Mrs. Baker's understanding of the meaning of her language used in the will, or of her intent in using it.

There is no error.

In this opinion the other judges concurred.