Mallory v. Mallory , 72 Conn. 494 ( 1900 )

The will gave to George S. Mallory an equitable remainder in fee, vested in the sense of transmissible, in one third of the testator's residuary estate; notwithstanding the power in the trustees, who were to hold it during the life of the testator's widow, to turn it into cash and apply the proceeds to her support, if the income of the fund should prove insufficient for that purpose. Peckham v. Lego,57 Conn. 553; Belfield v. Booth, 63 id. 299, 304; Johnson v.Edmond, 65 id. 492, 499.

For this there was substituted by the first codicil a devise to him of an equitable vested remainder in fee in one fourth of such one third, and a devise in trust of a like remainder in the remaining three fourths for the benefit of his three children and their representatives. Under the second codicil, in case of the death of their father before the testator's widow, these grandchildren were to have an equitable vested remainder in fee, in the whole of this third, subject to certain provisions in favor of their representatives. One of these (Article 1, clause IV) was that if his son George S. Mallory, and also the latter's son, George G. Mallory, should die before the testator's widow, the share that would have been received upon the latter's death by George G. Mallory should in that event, if he left no children, go to his widow for life. George S. Mallory having died before the testator, the third codicil substituted his children for him as to the remainder in fee in one fourth of the third of the residuary estate which was designed for him and his representatives. The three remaining fourths, from the decease of the testator's widow, were to be held by the trustees of the general residuary estate, for fifteen years, as three separate funds. The income of one of these was to be enjoyed by George G. Mallory, and the principal was to be his absolutely at the expiration of the term.

Clause A 5 of the first codicil having been expressly revoked, and not revived, and clause IV of article 1 of the second codicil being inconsistent with the third codicil, the widow of George G. Mallory took nothing by reason of his death before that of the testator's widow. It is not improbable that the testator intended to regulate the trust created by the third codicil by reviving the provisions, not of paragraphs A 2, A 3 and A 4 of the first codicil, but of paragraphs A 2, A 4 and A 5. Paragraph A 3 had become of no importance, for there was nothing upon which it could operate. Paragraph A 5, on the other hand, expressed a similar policy as to the disposition of George G. Mallory's share, should he die before the end of the fifteen years, to that laid down in paragraph A 4 with respect to his sisters. We cannot, however, make a will for the testator. The language he has used is apt and precise. One word cannot be substituted for another, in construing a will, unless it is so obvious that such was the testator's intent that there can be no difference of opinion in regard to it between reasonable men. Jackson v. Alsop,67 Conn. 249. This cannot be said of the will now under consideration.

Paragraph A 5 having been revoked, the trust for fifteen years from the date of the widow's decease, created by paragraph A 2 and revived by the third codicil, was for the sole benefit of George G. Mallory. It was one of three "respective subdivisions," to be held "for the benefit respectively," of the three children of George S. Mallory. He was to receive the entire income accruing from it during the fifteen years, and the fund itself at the end of that period. No provision, by way of cross-remainder or otherwise, having been made for his death during the term, it is the necessary legal result that the postponement, until its expiration, of the payment and transfer to him of the principal of his share is to be taken as intended solely for his protection. His death removed the occasion from any such protection, and as the disposition of the income was to be the same as that of the fund, the estate of the testator cannot be profited by any delay in paying over the latter. Under these circumstances, the law sends it forthwith into the hands of his administratrix as a part of his estate. Tarrant v. Backus, 63 Conn. 277.

The description of the devises and bequests made by the third codicil in favor of the children of George S. Mallory, as one "to them in trust," might mean that they were to be the trustees of the fund, or might mean that they were to be the beneficiaries. Reading the will and codicils together, we are satisfied that it is to be taken in the latter sense, and that it was to be held in trust for their benefit respectively by the trustees already in possession of it.

Of the three named in the will, but one, Marshall H. Mallory, now survives. After the death of George S. Mallory the testator himself supplied his place by the appointment of Roland H. Mallory. The question is now presented whether the subsequent death of the widow has left a vacancy which it is necessary to fill under the provisions of the first codicil. By these, such one of the testator's two grandsons, William W. Mallory and Roland H. Mallory, is constituted trustee in place of the widow, as "the then surviving or acting trustee shall select," and no probate bond is to be required "of my grandson so selected." The important power of dividing the whole estate into three equal parts is also given to "the original surviving or acting trustees and the trustee appointed as aforesaid in place of my wire."

Prior to the execution of the third codicil, no provision had been made for the event of the death of either of the trustees other than the widow. Its consequences were left to be settled by the law. No settled purpose that the trustees should always be three in number is anywhere indicated on the face of the testamentary papers, and none is necessarily implied. Unless, therefore, a contrary result must follow from the directions in the first codicil, the estate which upon the widow's decease vested in the two surviving trustees, will remain in them and the survivor of them.

The first codicil contemplates a choice between two grandsons, both belonging to the same stock of descent. This choice was to be made in view of their character and fitness at the time of the widow's decease. No such choice was then possible. It had been made impossible by the act of the testator himself. But one of them was left who could be appointed a trustee, and as any power of selection had been thus withdrawn, the whole scheme failed, and the surviving trustees cannot add to their number.

It was suggested at the bar that the entire provision as to a fifteen-year trust with respect to any part of the property left in remainder to George G. Mallory, was void, as being an attempt to impose restrictions on his power over an absolute estate otherwise granted. It is unnecessary to pass upon this point, since his death before the commencement of the contemplated term has made its determination immaterial.

As to that third of the fourth of one third of the testator's estate, the remainder in which the third codicil gave to him and his heirs forever, without the interposition of any trust, it became, of course, upon his grandmother's decease, the absolute property of his estate.

The Superior Court is advised that: —

1. George G. Mallory had at the time of his death an equitable remainder in fee, vested in the sense of its being transmissible, in one third of one third of the testator's residuary estate (defeasible in part by an appropriation by the trustees of a portion thereof, should they deem it necessary, for the support, comfort and maintenance of the testator's widow).

2. Upon the decease of the widow, said one third of said third of said estate became immediately a part of the estate of George G. Mallory, of which his administratrix, as such, was entitled to the possession.

3. The widow of George G. Mallory took nothing as a purchaser under the will of George Mallory. Her rights in the estate left to her husband are such only as may exist by law in any estate owned by him at the time of his decease.

4. Mary L. Mallory and Helena C. Mellersh are not trustees under paragraph 1 of the third codicil. The plaintiffs are trustees for them, and have no power to select, or appoint another trustee in place of the testator's widow.

5. Whatever allowances may be made to the several parties for their expenses and counsel fees should be paid out of that one third part of the testator's estate left to George S. Mallory, or his family or representatives.

The statutory fees and costs taxable in this court to the prevailing party will be taxed for payment out of said third part of said estate in favor of the widow of George G. Mallory, and also in favor of his sisters, and also in favor of said estate.

In this opinion the other judges concurred, except HAMERSLEY, J., who dissented.