Citation Numbers: 89 A. 882, 88 Conn. 28
Judges: Prentice, Thayer, Wheeler, Beach, Greene
Filed Date: 3/5/1914
Status: Precedential
Modified Date: 10/19/2024
Mrs. Mortensen, as the only child of the testator who survived her mother, the life tenant, *Page 30
claims to be entitled to receive from the plaintiff, as administrator of her father's estate, all of the property now in his hands for distribution. She contends that the gift over to the testator's children was one to a class, and that, since the vesting in enjoyment and possession was postponed to the death of the life tenant, the membership of the class was to be determined as of that time. Here are two independent propositions. The first is well made, in that the gift is one to a class in the sense that it is not one to persons nominatim, but designated by a general description. The second, touching the determination of the persons designated, is one not infrequently found in the text-books and cases. Schouler on Wills (3d Ed.) § 532; Tingley v. Harris,
We have no occasion to inquire as to either the correctness or the true meaning and interpretation of this asserted principle of construction. It is sufficient for present purposes to note that those who assert it recognize that it has its exceptions. Gardner, for instance, having stated the rule as above, immediately proceeds to add that it is subject to two exceptions. One of these is where the limitation over is to the heirs of the testator, as was the case in Allen v. Almy,
Whether the rule as last stated be regarded as an exception to some other rule or an independent one, it has received general recognition as one which leads to the early vesting of estates, which the law highly favors, and at the same time effectuates the presumptive intent of the testator under the circumstances, where no other indication of that intent appears in the will as read in the light of the surrounding circumstances. Jarman's more extended statement of it is as follows: "Where a particular estate or interest is carved out, with a gift over to the children of the person taking that interest, or the children of any other person, such gift would embrace not only the objects living at the death of the testator, but all who may subsequently come intoexistence before the period of distribution. . . . In cases falling within this rule, the children, if any, living at the death of the testator, take an immediately vested interest in their shares, subject to the diminution of those shares (i. e. to their being divested pro tanto), as the number of objects is augmented by future births, during the life of the tenant for life; and, consequently, on the death of any of the children during the life of the tenant for life, their shares (if their interest therein is transmissible) devolve to their respective representatives; though the rule is sometimes inaccurately stated, as if existence at the period of distribution was essential." 2 Jarman on Wills (6th Ed.) 1667. To the same effect see 2 Underhill on Wills, § 558; Theobald on Wills *Page 32
(7th Ed.) 312; Page on Wills, p. 635; 2 Washburn on Real Property (6th Ed.) § 1596; and 2 Reeves on Real Property, § 879. Among the cases supporting the proposition are Middleton v. Messenger, 5 Ves. Jr. 136; Doe
v. Considine, 73 U.S. (6 Wall.) 458, 475; Minning v.Batdorff,
We have upon several occasions given full effect to this canon of construction.
In Dale v. White,
In Austin v. Bristol,
In Beckley v. Leffingwell,
In Johnson v. Webber,
In the following cases the gift over was held to have vested in the members of the class at the death of the testator and in after-born persons answering the class description as soon as born. Jones Appeal,
We know of no case in this jurisdiction where, the gift over being to children either of the testator or of any other person or persons, it has been held, in the absence of provision of the will to that effect, that the death of one of them after the testator's and before the termination of the particular estate or the time of distribution operated to diminish the number of shares into which the fund was to be divided, or that the membership of the class of takers was to be confined to those then living. The expression in Belfield v. Booth,
Where the limitation over is, as here, to the children *Page 35
of the testator, with the right of enjoyment postponed, and not to the children of some other person, the reason for the nonexclusion from the class of beneficial takers of any child who survived the testator, or its legal representatives, unless the intent that there be such exclusion is clearly expressed by the testator, is especially strong. In such case an enlargement of the class is impossible, since a deceased can have no children not either born or conceived, and a child en ventre sa mere
will be considered in being from the time of its conception, where it will be for its benefit to be so considered.Cowles v. Cowles,
The rule above stated is, of course, one of presumption only. If a contrary intent has been sufficiently expressed in the will, that intent will, in this as in all other matters of testamentary construction, govern.
This will is altogether barren of provision or expression indicative of such contrary intent, and the circumstances surrounding the testator are equally barren of suggestion of his having harbored such intent, to say nothing of his expression of it. On the contrary, it is scarcely conceivable that he could have entertained any desire that survival until the death of his wife should be a controlling factor in determining the extent of his benefactions in favor of his children and their issue, all, *Page 36 in so far as appears, equally near and dear to him. It would be strange indeed if the uncertainty of results which would attend such a disposition of his property, and the possibilities inhering in it, were within his testamentary scheme, upon its face so simple and so equal in its treatment of the natural objects of his bounty.
The use by the testator of the expression "upon the decease of my said wife," in connection with the gift of the remainder, is not indicative of an intent to postpone the vesting in right. Of this formula we have heretofore had occasion to say that it is construed to relate to the time of taking effect in possession and not to the time of taking effect in interest. Austin v. Bristol,
Counsel for Mrs. Mortensen make no claim on her behalf, as the last survivor of the testator's three children, based upon the asserted creation by the will of an estate in joint tenancy in the members of the class with the incident of survivorship. In Allen v. Almy,
The Superior Court is advised that the limitation over upon the death of Jane E. Ensign gave to each of the testator's children who survived him, to wit: Clarinda H. Fenton, Harriette P. Ensign, and Lucy Ensign, now Lucy E. Mortensen, a vested transmissible and indefeasible estate in fee in and to one third of the testator's estate, subject only to the life estate of Jane E. Ensign, and that such estate in each of said children was not contingent upon her surviving said Jane E. Ensign, or defeated by her not so surviving.
No costs in this court will be taxed in favor of any of the parties.
In this opinion the other judges concurred.
Mitchell v. Mitchell , 73 Conn. 303 ( 1900 )
Baer v. Hendricks , 147 N.Y. 348 ( 1895 )
Tingley v. Harris , 20 R.I. 517 ( 1898 )
Stevenson v. . Lesley , 70 N.Y. 512 ( 1877 )
Belfield v. Booth , 63 Conn. 299 ( 1893 )
Gaffney v. Shepard , 108 Conn. 339 ( 1928 )
Beit v. Beit , 98 Conn. 274 ( 1922 )
Mahoney v. Mahoney , 98 Conn. 525 ( 1923 )
Budington v. Houck , 134 Conn. 72 ( 1947 )
Trowbridge v. Townsend , 112 Conn. 104 ( 1930 )
Bartram v. Powell , 88 Conn. 86 ( 1914 )
Estate of Ritzman , 186 Cal. 567 ( 1921 )
Connecticut Bank & Trust Co. v. Brody , 174 Conn. 616 ( 1978 )
Hartford National Bank & Trust Co. v. VonZiegesar , 154 Conn. 352 ( 1966 )
Wallace v. Wallace , 103 Conn. 122 ( 1925 )
Close v. Benham , 97 Conn. 102 ( 1921 )
Colonial Trust Co. v. Waldron , 112 Conn. 216 ( 1930 )
Westport Paper-Board Co., Inc. v. Staples , 127 Conn. 115 ( 1940 )
Hoadley v. Beardsley , 89 Conn. 270 ( 1915 )
Bridgeport City Trust Co. v. Shaw , 115 Conn. 269 ( 1932 )
Hartford National Bank & Trust Co. v. Birge , 159 Conn. 35 ( 1970 )
Hartford-Connecticut Trust Co. v. Gowdy , 141 Conn. 546 ( 1954 )
Howard v. Batchelder , 143 Conn. 328 ( 1956 )