Beach v. Mekiden Trust & Safe Deposit Co.

Burpee, J. The answers to the questions upon which the advice of this court is asked, depend upon the meaning which should be given to the word “heirs ” used by the testator in his will. Our decisions have recognized the fact that this word has been used by testators sometimes with one meaning and sometimes with another. In Ruggles v. Randall, 70 Conn. 44, 48, 38 Atl. 855, this court said: “The word ‘heirs,’ in its strict and primary meaning, signifies those entitled by law to inherit by descent the real estate of a deceased person. It is also popularly used to denote those entitled by the statute of distributions to succeed beneficially to the personal estate of a deceased person.” In Tingier v. Chamberlin, 71 Conn. 466, 469, 42 Atl. 718, it was decided that a testatrix used the words “heirs at law ” of her son, “not as meaning his children, but in their natural or proper sense, as including all those persons who shall be capable of inheriting from him or taking his property under the statute of distributions, if he died intestate.” In Dickerman v. Ailing, 83 Conn. 342, 345, 76 Atl. 362, the testator directed that the remainder of his estate be distributed among his “legal heirs, and legal representatives according to the laws of distribution of the State.” We said that, without regard to the words “legal representatives,” the testator’s intention to make a division of his estate according to our statute of distributions, was too clear to be seriously questioned. And we have declared: “In fact, the word ‘heirs’ has been so often used and construed as including *825 all who would inherit either real or personal estate, that there is no longer any good reason for insisting upon its technical significance, except where the intention to use it in that sense is apparent.” Morse v. Ward, 92 Conn. 408, 411, 103 Atl. 119. The will before us does not disclose an intention of the testator to use the word “heirs ” in its technical significance. He gave all of his estate to the defendant to hold in trust until the death of all his five children. He directed his trustee to pay to each of the five children exactly one fifth of the income from his estate. There is no provision that the trustee in any event shall pay to any child any share of the income greater than one fifth. The death of one or more of his children was not to increase the share to be paid to any of the surviving children. There is no indication of a purpose to add, in any way or at any time, to the designated one-fifth share to be paid to each of the five named children. The testator plainly intended that the income be divided into as many equal shares as there were children at the time he made his will, and that it be so divided continuously until the death of all of his children. There is no suggestion that after the death of one child, one fourth of the income shall be paid to each remaining child. It is manifest that the trustee, being directed to pay to each named child and his heirs one fifth of the income and no more, is required to select, if possible, some person as the heir of a deceased child who is not one of the other children of the testator or one of the heirs of one of the other children. In no other way can the trustee continue the division of the income into five equal shares. The testator’s scheme to divide his property into as many parts as there were children at the time he made his will, is carried out to the end of its provisions. When the trust shall be terminated by the *826 death of all of his five children named, the trustee is directed to pay one-fifth part of the residue of the estate to the heirs of each child of the testator named in the will. Manifestly his controlling purpose was to prevent any of these children from receiving any part of the principal of his estate. It is apparent that he anticipated that when the time for a final distribution of his estate should arrive, there would be a person or persons in existence who might inherit from each of his children one of the one-fifth parts. And it is equally evident he did not desire that the heirs of any child should receive more than the designated one fifth. When one of his children died without heirs who could inherit his real estate by descent, the wishes of the testator can be carried out only by construing the word “heirs,” as he used it in his will, to mean a person who can inherit that child’s part of his estate according to the law of distribution in this State. Since no man can have heirs until his death, the law in effect at the time of the death of that child in 1922, determines who his heirs are. That law is found in Chapter 221 of the Public Acts of 1921, and the applicable part is as follows: “On the death of a husband or wife married on or after April 20, 1877, . . . where there is no will, ... if there are no children of the decedent or representatives of children, and no parent, the survivor shall take all of the estate of the decedent absolutely. . . .” This deceased child of the testator left no child nor representative of any child, nor any parent, but only a widow, the plaintiff, whom he married since 1877. Under the statute, she took all of his estate absolutely. She was his sole heir, by force of the statute. As statutory heir, she was also legal heir. In the will there appears no disposition of .the testator to exclude the wife of his son from that classification, nor any purpose that none except blood relatives should share in his bounty. *827 This will contains no reference to the disposition of the income of the testator except the provision in subdivision (d) quoted above. In the following subdivision the trust is continued until the death of all of the testator’s five children named. During the trust, the testator intended that the income should be paid as directed in subdivision (d): that is, to each of the five children during his life, and thereafter to the heirs of each. As the sole heir of one of these children, this plaintiff is entitled to his share of the income until the death of all of the testator’s children. • The language of subdivision (e), that the trustee, upon the death of all the testator’s five children named, shall “pay over and deliver to the heirs of each child, to each one-fifth part of the entire residue of my estate,” imports a gift to the heirs of each child. Angus v. Noble, 73 Conn. 56, 64, 46 Atl. 278; Johnson v. Webber, 65 Conn. 501, 513, 33 Atl. 506. The heirs of each child are or will be the persons entitled at the time of his death to inherit his estate. At that time, an undivided one-fifth part of the residue of the testator’s estate vested, or will vest, in fee in the person who was, or shall be at that time, the heir of any of his five children named. Each one-fifth undivided part then became, or will become, an estate alienable and transmissible by inheritance, although the vesting in enjoyment will be postponed until a future and uncertain time. Allen v. Almy, 87 Conn. 517, 523, 89 Atl. 205. ' We advise the Superior Court that each of the questions of law reserved for the consideration of this court should be answered in the affirmative. Costs in this court will be taxed in favor of the plaintiff. In this opinion the other judges concurred.