Stamford Trust Co. v. Lockwood

In the recent case of Middletown TrustCo. v. Gaffey, 96 Conn. 61, 66, 112 A. 689, we said: "The term ``issue,' in a will, is to be construed as a word of purchase, unless it appears from the context and surrounding circumstances to have been used as one of limitation. Its primary, and therefore presumptive, meaning, when used as a word of purchase, is heirs of the body, and includes descendants of every degree. But when the intention of the testator, as evinced by the context and surrounding circumstances, indicates that he used the word ``issue,' not in its larger significance, but in its more restricted sense, it will be construed so as to effectuate the testator's intent and to be synonymous with children or grandchildren." In that case the terms "issue" and "children" were used interchangeably by the testator and were construed as synonymous. In this case we cannot discover from the will or the surrounding circumstances any intent to so limit the term "issue," and it must be held to include descendants of every degree.

The next question is whether the descendants of any deceased child or grandchild take per stirpes by right of representation of the deceased ancestor, or percapita. On this point the will contains no explicit direction, and in the absence of any direction to the contrary we have uniformly held in analogous cases that the per stirpes rule of distribution should be adopted. Thus in Cook v. Catlin, 25 Conn. 387, the words were: "The remainder of my estate I give to my heirs." The testator's only heirs were children of deceased brothers and sisters. On page 391 we said: "The question is, whether the nephews and nieces take equal shares per capita, or whether they take, by right of representation, the share a brother or sister of the deceased, whose children they are, and whom they therefore represent, would take if living." It was held that they took per stirpes. In Bond's Appeal,31 Conn. 183, the gift was "to my wife, all my real estate, so long as she shall remain my widow; but on her decease or marriage, the remainder thereof I give . . . to my children and their heirs respectively, to be divided in equal shares between them." A per capita distribution among children and their heirs was claimed, but we held that the heirs took per stirpes, and that the heirs of a deceased child took only the share of their deceased ancestor. In Lyon v. Acker, 33 Conn. 222, the gift was "to my three daughters, Mary, Susan, and Josephine, and the children of my son Samuel, my homestead, to them and their assigns forever, share and share alike." We held that the children of Samuel took per stirpes, and not per capita in competition with the three daughters. In Talcott v. Talcott, 39 Conn. 186, the testator left all the income of his real estate to two living daughters by name, "and all the children born of" each of the daughters, and also to "all the children" of a deceased daughter, "to be equally divided among the above mentioned heirs." It was held that the will directed an equal distribution per stirpes among three classes. In Raymond v. Hillhouse,45 Conn. 467, the bequest was "the residue of my estate I give to the following named persons, to be divided equally among them; my sisters [naming them], the grandchildren of my deceased brother [naming him], and the grandchildren of my deceased sisters [naming them]." It was held that the grandchildren took perstirpes. See also Heath v. Bancroft, 49 Conn. 220; Lockwood'sAppeal, 55 Conn. 157, 10 A. 517, and Jackson v. Alsop, 67 Conn. 249, 254, 34 A. 1106. In Close v.Benham, 97 Conn. 102, 107, 115 A. 626, we said: "In Heath v. Bancroft, 49 Conn. 220, 223, we expressed the view that, in the absence of words indicating a contrary intent, a will is to be interpreted as intending to distribute an estate per stirpes, and in accordance with the statute of distributions. ``A further consideration in favor of the per stirpes rule is, that this rule has for two centuries commended itself to the judgment of the community as one of justice, and has been and is the rule applied by the law in case of intestate estates. In these circumstances this rule will be applied in the construction of a will where the language of the will leaves the intent of the testator in serious doubt.'"

It is quite true that in most of the cases cited there was some implication of the intent to make it a perstirpes distribution, though no explicit direction to that effect, and that in some of them the unequal consequences of a per capita distribution was pointed out as one of the considerations in favor of adopting the per stirpes rule. Both of these considerations are found in the present case. In the first place the testator himself adopted the per stirpes rules when he treated the two daughters of his deceased son Edward as representing their deceased parent, and directed that they should take each one eighth of the income, in spite of the fact that one of them, Jessie Borden, had two children living at the time when the will was executed, while the other, Florence Bell, was unmarried. And so as to the principal of this one-quarter share, the will provides that in case both of the last-named grandchildren should die without issue, "then such share of the principal as would have been paid to their issue, shall be equally divided between and among the lawful issue of said Harry Bell, Georgianna Hecker and M. Louise Vincent, per stirpes." In the absence of any explicit direction to the contrary, it would seem that the same rule of distribution among "lawful issue" was intended to be applied to the other three quarters of the testator's estate.

That a per capita distribution among issue of every degree would in this case result in an unequal distribution of the testator's estate among the several branches of his family, is apparent. On the other hand, a distribution per stirpes among the issue of whatever degree, the issue of each life tenant taking as a class by right of representation, satisfies not only the language of the will and the indicated intent of the testator, but also the policy of our law.

The nature of these gifts in remainder is not open to doubt. "We have uniformly held that unless the will sufficiently expresses a contrary intent, a limitation over, after life estate, to the issue of the life tenant, and, failing issue, to the heirs, or heirs at law, or to the children or grandchildren of the testator, or to children of another than the testator, are gifts to a class, and vest in point of right upon the testator's death, although the right of possession is postponed until the termination of the life estate." Close v. Benham, 97 Conn. 102,103, 115 A. 626, and cases cited.

The defendant Gladys (Bell) Phillips was the daughter of Andrew J. Bell, 2nd, and was born after the testator's death. On May 13th, 1913, while her father was still alive, she was legally adopted by John and Louise Phillips. At that time she had no vested interest in the principal of the testator's estate, and at that time, she, by force of the statute, ceased to be the child of Andrew J. Bell, 2nd, and became the child of her parents by adoption. Her right to participate in a distribution per stirpes, as representative of Andrew J. Bell, 2nd, was lost before his death.

The Superior Court is advised to answer the several questions propounded as follows: 1. The term "lawful issue" as used in the will means issue of every degree. 2. The descendants of the several life tenants take per stirpes. 3. They take by right of representation and not per capita. 4. The principle of representation applies. 5. The issue of whatever degree who would be entitled to take under the statute of distribution. 6 and 7, Yes. 8 and 9, Yes. 10, No. 11 and 12, as of the date of the testator's death, the class opening to take in afterborn issue.

No costs will be taxed in this court.

In this opinion the other judges concurred.