Hartford-Connecticut Trust Co. v. Thayer

Haines, J. Of the thirty-six reasons of appeal, the first and clearly the most important raises the question whether the power of appointment given Mrs. Miller by the third clause of Darius Miller’s will was duly exercised by the provisions of her will. This is correctly stated by counsel for the appellants as the “ultimate issue” in the case. Of the remaining reasons of appeal, there are several which relate to matters *64 bearing more or less directly upon this main question, and the rest may be grouped under two heads, viz.: those relating to changes in the finding and to the admission of certain evidence. We first consider the rulings upon evidence. For the sole purpose of showing what knowledge Mrs. Miller had of her property at the time of the making of the will, the trial court permitted Mrs. Newton, Mr. Whaples and Mr. Thayer to testify as to what Mrs. Miller had said to them 'of this, her statement being that she had no property of her own. Again, for the purpose of showing that Mrs. Miller knew she had a right to dispose of certain property, by provisions in her husband’s will, Mr. Whaples was permitted to testify that she said her husband told her to come to him and make a will disposing of $500,000. She made her will as thus directed, by her husband, and on July 19th, 1919, after his death, Mr. Whaples read her will to her, and she then approved of it as written. This evidence of the knowledge which Mrs. Miller had as to the extent of her own property and of the fact that her husband was giving her a right to dispose of $500,000 of his property, established facts within her knowledge at the time her will was made. Their significance is manifest when it is noted that in her will she gave specific legacies amounting to $375,000. Relevant and material extrinsic facts within the knowledge of the testatrix, are always admissible for the ultimate purpose of discovering the intention of the testatrix in the use of the language which she adopts in her will. Our latest recognition of this principle is in the case of Stearns v. Stearns, 103 Conn. 213, 130 Atl. 112. We there expressly approved of Wigram’s fifth proposition, “For the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given *65 by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to, identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will.” We were careful to state (p. 221) that in our application of this rule, extrinsic facts could not be admitted “so as to materially qualify or contradict the instrument or interpolate a testamentary gift which its own tenor did not justify.” The evidence here in question did not and could not have this result. The purpose of its admission, as stated by the trial court, was “of enabling the court to put itself, as far as possible, in the place of Mrs. Miller and determine whether or not, by making the will she did, she intended to exercise the power given to her in the will of Darius Miller.” We think the evidence was properly admitted for that purpose. Thompson v. Betts, 74 Conn. 576, 51 Atl. 564; Bond’s Appeal, 31 Conn. 183, 190. This rule has been generally recognized and applied in other jurisdictions, as illustrated by the following cases among many: Lee v. Simpson, 134 U. S. 572, 578, 10 Sup. Ct. 631; Blake v. Hawkins, 98 U. S. 315, 324; Brown v. Thorndike, 32 Mass. (15 Pick.) 388, 400; Postlethwaite’s Appeal, 68 Pa. St. 477, 480; McCall v. McCall, 4 Rich. Eq. (S. Car.) 447, 455; Scaife v. Thomson, 15 S. C. 337, 357; Clark v. Clark, 19 S. C. 345, 348, 349. There is but one reasonable conclusion to be drawn from these facts, viz., that Mrs. Miller knew that the personal property which she gave in her will was property of her husband, which he had, by his will, given her the power to dispose of by her own will. Since he had not transferred or 'delivered to her, in form, any of the $500,000, it was a *66 natural and a necessary conclusion on her part that this $500,000 was to be given by her because of a provision he had made therefor in his will, and we are entitled to infer from these facts that she had this knowledge. We are then led, irresistibly, to the further conclusion that the intent of Mrs. Miller, as expressed by her will, was to give by it, not property which she believed was her own, but a portion of the property of her husband which he had authorized her by his will to dispose of. Though she probably had no understanding of a power of appointment as that term is used in the law, she did know she had the power to dispose of $500,000 of property which belonged to her husband. With this knowledge, then, she made her will, giving $375,000 in specific legacies and leaving the residuum to two sisters who were the natural objects of her bounty. Looked at in the light of her own knowledge of the situation, and noting the aggregate of her gifts, and the belief on her own part that she had no property of her own, and there being no evidence to the contrary, it is an obvious deduction from the will that Mrs. Miller intended to exercise the authority which her husband had informed her of, and which was the occasion of his sending her to Mr. Whaples. We think this intention is apparent and clear and in noway doubtful. The trial court found this intention to be a fact, , having put itself, as near as possible, in the position of the testatrix. Reading her will in the light of these extrinsic facts within her knowledge, as found by the trial court, we are of the opinion that the conclusion of the court is supported by the subordinate facts found, and is a reasonable and indeed an inescapable one. The trial court found that the day she executed her will, “Mrs. Miller knew that she had the right to give away by her will a trust fund created by-her husband’s will.” The appellants construe this as *67 saying that she knew her husband had made a will, that she knew its contents, and that he had therein created a power of appointment if she survived him. We do not so construe the language used by the court. The court found as a fact that she knew she had a right to give away a fund of $500,000 of her husband’s property. The court here designates that fund by the words, “a trust fund created by her husband’s will.” We think the fact which the court meant to express by the words used, would have been clearer if “the” had been used in place of “a.” This, we believe, is its proper meaning. The designation of the fund as a “trust fund,” was inaccurate, but the conclusion otherwise expressed by the finding is, we feel, a sound one and supported by the subordinate facts. The appellants argue that “there can be no intent to execute it [the power], unless the donee knows he has it to execute.” We deem this requirement to be satisfactorily met, however, since the donee knew she had been given, by her husband, a power of disposal over a certain amount of his property. A donee need not be learned in the law and understand that such an authority was therein known as a power of appointment, nor need she know specifically when, where, or how she was given the power. The controlling fact was that she had been given this power by her husband and this she knew. It is the pertinent question in the opinion in In re Slack’s Settlement, L. R. (1923) 2 Ch. Div. 359, quoted by the appellants: “Did the lady know of the existence of the power?” Clearly, in this case, Mrs. Miller did know of its existence. We cannot concur with the appellants’ conclusion when it is said in the brief, “her statement that Darius had asked her to make a will giving away $500,000 does not show any knowledge or appreciation on her part that she then had, or was to have, the right to exercise a power over *68 property belonging to Darius, the right to dispose of property which was not hers but his.” Especially when coupled with the further fact found that she then believed she had no property of her own, her statement above referred to shows beyond peradventure that she knew she was exercising a power to give away “property which was not hers but his.” It is somewhat idle to speculate upon what she thought was the source of this power which her husband had given her. It is quite unimportant whether she believed he was going to make her .a gift during her life upon which her will could operate. All she then knew, so far- as appears, was that he owned the property and she did not, and that he had given her the right to dispose of that amount of it. There is nothing in the record as we read it which permits us to go beyond this simple fact. Having the knowledge of her power of disposal, then, did Mrs. Miller intend by her will to exercise and execute that power? And if so, did the will as drawn have that result? And these questions we may, properly and conveniently, discuss together.' The pole star of testamentary construction is intent—the intent of the testator—and this intent is to be found in the will itself and cannot be aided by extrinsic evidence thereof, but the will may and should be read in the light of such surrounding circumstances as extrinsic evidence may show she had knowledge of. This is also, and necessarily, true of the intent to execute a power by will, and essentially the same test applies: “ 'The intention to execute the power must be apparent and clear, so that the transaction is not susceptible of any other interpretation, and, if it be doubtful under all the circumstances, that doubt will prevent it from.being deemed an execution.’ ” Union & New Haven Trust Co. v. Bartlett, 99 Conn. 245, 255, 122 Atl. 105, citing Story’s Equity Jurisprudence (14th *69 Ed.) Vol. 1, p. 245; Hill v. Conrad, 91 Tex. 341, 43 S.W. 789. “The main point is, to arrive at the intention and object of the donee of the power in the instrument of execution; and, that being once ascertained, effect is given to it accordingly. If the donee of the power intends to execute, and the mode be, in other respects, unexceptionable, that intention, however manifested, whether directly or indirectly, positively or by . . . implication, will make the execution valid and operative.” Bl agge v. Miles, 1 Story, 426, 445. The appellants contend that the will does not disclose an intent on the part of Mrs. Miller to execute this power, and as we understand the brief and arguments, that contention is based upon the following propositions: first, that throughout her will she has referred to the estate and the executor as “my,” and so indicates an intent to deal only with such property as she had the legal title to; second, that the will contains no reference to the power as such, or to the subject of it, and was not inoperative without the aid of the power. Two other grounds stated by the appellants are, (1) that the residuary clause cannot be held to be an execution of the power, (2) nor can the pecuniary legacies so operate. In the much quoted case of Blagge v. Miles, 1 Story, 426, Judge Story said (p. 446): “Three classes of cases have been held to be sufficient demonstration of an intended execution of a power; (1) Where there has been some reference in the will, or other instrument, to the power; (2) or a reference to the property, which is the subject, on which it is to be executed; (3) or, where the provision in the will or other instrument, executed by the donee of the power, would otherwise be ineffectual, or a mere nullity; in other words, it would have no operation, except as an execution of the power.” In the same connection he said: “All the *70 authorities agree, that it is not necessary, that the intention to execute the power should appear by express terms or recitals in the instrument. It is sufficient, that it shall appear by words, acts, or deeds, demonstrating the intention.” See also Hollister v. Shaw, 46 Conn. 248, 252. It is true that the will does not refer in terms to the power, or specifically to the property which is the subject of the power, and the claim is made that the will was not inoperative without the aid of the power. With this last statement we cannot fully concur. It was inoperative without the aid of the power except as to an inconsiderable portion of the property covered by it and the power. As we are now considering the will as and when it was written, our question, first, is whether it was operative at that time. This, rather than its operation at her death, is the true test of the intent of the will, and this the appellants concede. “The intent is to be sought at the date of the execution of the will.” (Brief, p. 47.) The finding shows that the house stood in her own name at this time, July 14th, 1916, but that she owned no other real estate. She did not know that she owned any personal property and so far as appears she did not. To all intents and purposes the will then so far as its $375,000 of legacies and its residuary clause was concerned, was “ineffectual and a mere nullity.” It had nothing to operate on without the aid of the power. At her death she owned $82,-379.57 of personal property, making the legacy clauses slightly over twenty per cent, operative and leaving the residuary clause wholly inoperative. Testing her intent at this date then, we must conclude, if she had her own property in mind, that she intended this meagre payment to her legatees and nothing -for her two sisters for whom she purported to provide in the residuary clause. On the other hand, if she intended *71 the will to operate on the $500,000 of her husband’s property, the will when made and when she died was fully operative and effective and the making of antemortem gifts of large amounts of property acquired by her after the making of the will, more than $54,400, is rationally explained by the fact that there was already full provision for the operation of her will, and her “acts, words and deeds” in this connection throw strong light on the intent to be found in her will. We concede the somewhat inconclusive character of a finding that the will is inoperative “to a certain extent,” but as a fact in her mind it must be deemed to have had its influence and the will must be read in the light of it to determine the intent in the will. And it has been held that the execution was intended where “some part of the will would otherwise be inoperative.” Bradish v. Gibbs, 3 Johns. Ch. (N. Y.) 523, 551. And in finding the intent to execute, the court may thus compare the amounts of the testator’s own property and of the trust fund. White v. Hicks, 33 N. Y. 383; Nolan’s Trust Estate, 251 Pa. St. 309, 96 Atl. 714; Hutton v. Benkard, 92 N. Y. 295, 303. We attach little significance to the use by Mrs. Miller of the word “my” when referring to the estate or the executor in her will. Her unfamiliarity with business, and particularly with legal distinctions in the ownership of property, may and doubtless does account for her failure to distinguish between property which she legally owned and property which she had the right simply to give away. If she had referred specifically, in an opening clause in her will, to this power, and thereafter used the same word “my,” there would of course have been no controlling importance to the word, and it has little significance now. We are in accord in this respect with the opinion in the case of Hutton v. Benkard, 92 N. Y. 295, 304: “It would not *72 be unnatural for her, when she came to make a will, to treat this trust property, which she had the same right to dispose of by will to any person whatever, as she had to dispose of her own property, as if it were, in fact, absolutely hers.” See also Funk v. Eggleston, 92 Ill. 515, where “all my estate” carried trust property. Other points made by the appellants, in brief and argument, bearing upon the question of intent, are not of major importance and cannot affect our conclusion that Mrs. Miller’s will discloses an intent to execute the power. At this point, however, the appellants’ claim is put forward that having been made before the death of Mr. Miller, whose will provided the power, Mrs. Miller’s will cannot be held to execute the power, and this claim is based upon three propositions: (1) because the donee-to-be cannot be said to have intention to execute a power which is not in existence, unless, of course, his will makes specific reference to the power; (2) because the power as given by the donor is not broad enough to include such an exercise; and (3) because as a matter of law it is impossible. The appellants’ argument under this head fails for want of a correct premise, for, they say, “we cannot consider a mass of extrinsic evidence purporting to explain what her idea was in drawing her will so far ahead of the creation of the power. . . . That the donor might have approved a designation made prior to his death, had he thought of it, is immaterial.” The ground stated in (1) above concedes that if specific reference is made to the power, then the will would operate though the death of the donor of the power had not occurred. This is merely a recognition of the controlling force of the intent, when determined. We have such intent determined in this instance as already indicated, coupled with the direct authority *73 by word of mouth from the donor of the power for its forthwith execution. Reading both wills in the light of these facts, we find no language to which a present execution of the power would do violence. Thus reaching this conclusion, the further question of the effect of a codicil executed after Mr. Miller’s death, becomes of academic interest only. We have heretofore said: “The execution of a codicil, which in terms ratifies and confirms a previous will . . . [has] the same force and effect in law as if it had been rewritten, re-executed, and republished at the date of the codicil.” Lee v. Lee, 88 Conn. 404, 406, 91 Atl. 269; Giddings v. Giddings, 65 Conn. 149, 160, 32 Atl. 334; Whiting’s Appeal, 67 Conn. 379, 388, 35 Atl. 268; Carpenter v. Perkins, 83 Conn. 11, 18, 74 Atl. 1062. A study of the full and able briefs presented by counsel for all parties, does not leave in our minds any doubt as to the soundness of the conclusions we have reached upon what we consider the controlling features of the case; nor do we find anything in the reasons of appeal not touched upon, which could affect this result. There is no error. In this opinion the other judges concurred.