Lee v. Lee

The question whether the legacies to the sisters who died before the testatrix are saved for the benefit of their issue, by § 296 of the General Statutes, depends primarily on the effect to be given to the execution of the codicil of 1908, as a republication of the will of 1897. The defendants who are residuary legatees, rely upon the rule that the execution of a codicil, which in terms ratifies and confirms a previous will, gives to the original will the same force and effect in law as if it had been rewritten, re-executed, and republished at the date of the codicil. Giddings v. Giddings, 65 Conn. 149,160, 32 A. 334; Whiting's Appeal, 67 Conn. 379, 388,35 A. 268; Carpenter v. Perkins, 83 Conn. 11, 18,74 A. 1062. Then it is said that as both of the sisters named in the third clause of the will were dead when the codicil was executed, the bequests contained in the third clause are in legal effect gifts to persons already dead at the date of the execution of the will, and therefore legacies which were void when made. The legal conclusion of the argument is that our statute for preventing lapses in certain cases is confined to legacies which lapse by reason of the death of the beneficiary after the execution of the will, and that it does not operate to save a bequest which was void when made, because the beneficiary was already dead when the will was executed.

In the view we take of the case it is unnecessary to determine whether our statute is so limited or not, because this case must be controlled by the universally accepted principle that no rule for the construction of wills shall be permitted to defeat the intention of the testator expressed in the will itself. The first enacting clause of the codicil here in question is as follows: "First: I hereby reiterate and reaffirm all the provisions of my said last will and testament, except in so far as the same are altered hereby." That is to say, the testatrix reiterates and reaffirms, as of January 20th, 1908, the third clause of her will making certain bequests to sisters already dead; obviously intending, so far as her written word is concerned, that such legacies, in common with all other unaltered provisions of her will, should continue in the same legal force and effect as before the codicil was executed. The statute, which the testatrix is presumed to know, had, at the dates of the sisters' deaths, converted their legacies into valid gifts to the issue of such sisters; and it would be a misapplication of the rule contended for to hold that the testatrix, by the very act of reaffirming these gifts, had inadvertently made them utterly ineffectual in law. Blakesleev. Pardee, 76 Conn. 263, 267, 56 A. 503.

The codicil of 1908 did not convert the bequests contained in the third clause of the will into void legacies. They still remained of the same effect, and therefore still remained operative under the statute as gifts to the issue of the original legatees.

In this connection we are asked to determine whether extrinsic evidence is admissible to prove that the testatrix, when she executed the codicil, knew that her sisters were dead, and also that she then believed the legacies had lapsed and become void by reason of their deaths. We answer that evidence of her knowledge of the sisters' deaths is admissible as one of the circumstances surrounding the execution of the codicil; but that evidence of her belief that the legacies to her sisters had become void is not admissible. Its only importance would be as tending to prove that the testatrix, in executing the codicil, did not intend to make cumulative gifts to the issue of her deceased sisters; extrinsic evidence of such intent is inadmissible. Bishop v. Howarth, 59 Conn. 455,22 A. 432; Bryan v. Bigelow, 77 Conn. 604, 614,60 A. 266; Seymour v. Sanford, 86 Conn. 516, 521,86 A. 7.

The determination of the second question presented by the reservation depends upon whether the sixth clause of the will creates a gift to a class, with a right of survivorship, or a gift to each of the six children of the testatrix. The decisive words are as follows: "Sixth. I direct my executors hereinafter named to divide all the rest, residue and remainder of my property into six equal shares or parts, and 1. To pay over one of such shares or parts to my son Charles N. Lee. 2. To pay over one other of such shares or parts to my son Frederick H. Lee"; and so each share is to be paid over or held in trust for one separately named child.

It seems too clear for discussion that no joint tenancy or class gift with right of survivorship can be constructed from such language. The question has been so recently before us that it is only necessary to refer toAllen v. Almy, 87 Conn. 517, 89 A. 205, and White v.Smith, 87 Conn. 663, 89 A. 272. It follows that the share of Frederick H. Lee, who died without issue before the testatrix, is intestate estate.

The Superior Court is advised: first, that the issue of Sarah R. Guinn and Jerusha A. Winsolow, respectively, take the legacies given to the testatrix's sisters under the third clause of the will; second, that the portion of the rest, residue and remainder of the estate, given to the testatrix's son Frederick H. Lee, is intestate estate.

In this opinion the other judges concurred.