Perry v. Bulkley

Prentice, J. This will was made subject to its becoming void upon the happening of certain contingencies which never happened. These provisions may, therefore, be dismissed from consideration. All the questions presented arise out of the language of the two codicils. By the terms of the original will the testator divided “all the rest, residue and remainder" of his estate equally between his only brother, Augustus Bulkley, and his only sister, Mrs. Perry, to them and their heirs forever. It is apparent that the death, of this brother, childless, prompted the execution of the first codicil, and that its chief purpose was to substitute for him, as the beneficiary of one of the equal shares of the residuary estate, Miranda B. Merwin and her issue. It contains a provision for the bestowment, absolutely, of the excess of the testator’s estate over and above $100,000, thereby reducing the amount of the possible residue, and makes one or two incidental directions relating to the settlement and distribution of the estate, but for the rest the testator concerns himself solely with the disposition of the residue. The gift of one half of it absolutely to Mrs. Perry is repeated. New provisions take the place of those which in the will gave the other half to Augustus. This half is no longer given to any person outright. Miranda B. Merwin, the only child of a deceased sister, is made the life tenant of it. The reason for this failure to bestow upon Miranda an absolute estate, such as had been given to Augustus, may be found in the fact that her next of kin was not of the kindred of the testator. But with this we are not concerned. Of that which in the will had been given to Augustus, there was left undisposed of the remainder upon the termination of Miranda’s life estate, and the testator provided that it should go “to *164 the heirs or issue of her body begotten, absolutely and forever.” This provision presents a question as to the effect of the attempted gift over. It is clearly void unless the quoted language describing the beneficiaries is to be interpreted as synonymous with children. The ambiguity of the language is apparent, and it is the duty of the court to determine and declare the intent of the testator thereby expressed. In so far as the language has a well defined and recognized primary meaning, that meaning should be accorded to it unless it appears that the testator used it in a different sense, when it should be given the meaning which he intended should be attached to it, if, thus understood, the provision of the will as applied to the estate would have an intelligible and sensible import. Leake v. Watson, 60 Conn. 498, 500, 21 Atl. 1075 ; Connecticut T. & S. D. Co. v. Chase, 75 Conn. 683, 692, 55 Atl. 171. The terms “heirs,” “heirs of the body,” “issue,” and “issue of the body,” in their primary legal meaning comprehend more than immediate issue. Bartlett v. Sears, 81 Conn. 34, 39, 70 Atl. 33 ; Ruggles v. Randall, 70 Conn. 44, 48, 38 Atl. 885. Certain of the parties claim that the words “of her body begotten” should be construed as qualifying both the words “heirs” and “issue,” and that the use of the word “begotten,” in this connection, clearly indicates the intent of the testator to limit the gift over to the immediate issue of Miranda. It is quite apparent that this codicil, as also the second, was not the production of á skilled draftsman, or of a person familiar with legal terms. Care should therefore be taken that too great emphasis should not be placed upon a precise construction of language or phraseology. Zimmerman v. Mechanics Savings Bank, 75 Conn. 645, 647, 54 Atl. 1120. If the unusual collocation of words which the testator employed was to be interpreted without reference to the second codicil, there might be doubt as to what he sought to express thereby. The latter codicil, however, throws a *165 very clear light upon the matter. In the will and first codicil there was no attempt made to dispose of the remainder in question in the event that Miranda, who was unmarried, should die without “heirs or issue of her body begotten.” This would be apparent to any intelligent layman. The second codicil was, beyond doubt, prompted by a desire on the part of the testator to supply this deficiency, and thus to accomplish the result which, in the introductory paragraph of his will, he announced to be his intention in making it. To be sure it contained a legacy of $1,000. But aside from that its sole purpose manifestly was to supplement the existing provisions of the will and first codicil. There was no purpose to change or modify them in so far as they might become operative, or to substitute anything for them. He apparently appreciated that he had failed to fully provide against the possibility of partial intestacy, and sought to incorporate into his testamentary instrument a provision which would prevent that result. This palpable fact possesses significance in the construction of the language of the codicil, as we shall have occasion to notice later. It possesses the additional significance that the testator therein used language defining the contingency for which he was providing, and that he defined it as the contingency that Miranda should die without issue. The inference is irresistible that he understood that he had by his language in the former codicil provided for the event of her death leaving issue. We have, therefore, the testator’s expression of his intended meaning — his own definition of his language. This definition makes the phrase in question synonymous with “issue.” “Issue,” when used as a word of purchase, means primarily and usually descendants of whatever degreé, and that is the meaning which will be given to it in a will, if, when thus construed, the provisions of the will, when applied to the estate, have an intelligible and sensible meaning; unless the context shows that the testator employed it in a different sense. Bartlett v. Sears, *166 81 Conn. 34, 39, 70 Atl. 33. There is nothing in this context to indicate that the testator did not use the word in its ordinary sense. The attempted gift over after the death of Miranda of that portion of the estate of which the life use was given to her, as contained in the first codicil, is therefore void. It remains to construe the second codicil. It contains a gift of $1,000 to Henry Bulkley Rodman. This gift is not to be construed as conditioned upon Miranda B. Merwin’s death without issue, but as a legacy which is to be paid in any event, and its amount is to be taken from the estate in determining the residuum. The other provisions of this codicil are conditioned upon the event stated. That event is not Miranda’s death without issue before the testator’s, but her death at any time without issue. The purpose which this codicil was intended to serve, already and sufficiently pointed out, negatives any other conclusion. The gift over in the first codicil was referable to her death leaving issue whenever it should occur. The second codicil was manifestly intended to meet the same contingency of death at any time, but without leaving issue, thus providing for either of the possible situations which might develop at her death. These considerations, growing out of the intended office of the second codicil, also indicate clearly that the subject-matter of its provisions, aside from those making the legacy of $1,000, is the same as that which was the subject of the gift over in the first codicil, that is, that portion of the residuum in which Miranda was given a life estate, and nothing more or less. In speaking of this property the testator enumerated the homestead where he lived, including the house and six acres of land, and having disposed of that, disposed of whatever balance there might be over and above the homestead. A question is presented as to what is to be regarded as embraced in this gift of the homestead, whether the whole or half of it, or. what, and also as to the effect which the gift, whatever it is to be construed to include, is *167 to have upon prior provisions, and especially that one of the first codicil which gives to Mrs. Perry one half of the residuum. The answer is made clear when the purpose of the codicil, already noticed, is recalled, and it is borne in mind that the subject-matter with which the testator was attempting to deal was nothing outside of what had been given to Miranda for life, and that he had no intent to change or modify the benefactions he had already made or to subtract anything from what he had already given. The first codicil had given one half of the residuary estate to Mrs. Perry absolutely. The other half was given to Miranda for life. The homestead was not specifically assigned to either of these shares. It might, therefore, have been distributed to either, or a part to each. The second codicil, however, clearly indicates the testator’s intention to have it set to Miranda’s share. Otherwise the codicil would be traveling outside of that share, the testator would no longer be confining himself to providing for a contingency for which provision had not been made previously, the death of Miranda without issue would be made to result in taking from Mrs. Perry what had been given to her absolutely, and the scheme of the will maintained from the beginning, that the residue should be divided into two equal portions and that Mrs. Perry should take one of them absolutely, would be upset. The codicil must, therefore, be construed as embodying an implied direction that this homestead be distributed to the share set out to Miranda’s use, and the subject-matter of the gift over, described as the homestead, including the house and land, is to be taken as referring to the whole of it. There is no question of the right of the children of George Bulkley to take what was thus given to them, and they took as equal tenants in common. The codicil next deals with “whatever balance there may be over and above the homestead.” This balance is, of course, the balance left of that portion of the residuum of which Miranda had been given the life use after the home *168 stead should be taken out of it. It is provided that the children of George Bulldey participate equally with the testator’s legal heirs in this balance. The testator’s legal heirs, in the primary meaning of that term, were those who in the absence of a will would have been entitled by law to inherit by descent his real estate. Ruggles v. Randall, 70 Conn. 44, 48, 38 Atl. 885. There is nothing to indicate that he used the term in any other sense. The persons who are described as being entitled to participate with the Bulldey children are the testator’s heirs ascertained as of the time of his death, and not, as claimed by certain of the parties, his heirs to be ascertained upon the death of Miranda, the life tenant. The gift over to them, conditioned upon the death of Miranda without issue, was therefore a valid one. Thomas v. Castle, 76 Conn. 447, 451, 56 Atl. 854 ; Ingersoll v. Ingersoll, 77 Conn. 408, 410, 59. Atl. 413. These heirs were Mrs. Perry and Miranda. The widow is not to be included. Ruggles v. Randall, 70 Conn. 44, 48, 38 Atl. 885 ; Morris v. Bolles, 65 Conn. 45, 58, 31 Atl. 538. The parties who would be entitled to participate in the division of this “balance” having been ascertained, we have next to determine the basis of their participation. The codicil states that the children shall participate equally with the heirs. By this is meant, we think, that the children of George Bulldey, as one group, should take one half between- them, and the heirs between them the other half. In the division between the two heirs Mrs. Perry and Miranda would be entitled to share equally. The basis of division, therefore, would be one half to the children of George Bulldey as equal tenants in common, and one quarter each to Mrs. Perry and Miranda B. Merwin. It thus appears that Miranda has a vested interest by right of descent in one half of that one half of the residuary estate which by the first codicil is given to her for her life, subject to her life estate. That interest, however, is a vested one only in the sense that it is capable of alienation, *169 and the subject of succession by inheritance. It is not a vested one in the stricter sense that it is certain to come into possession upon the termination of the preceding life estate. It is made contingent upon her death leaving issue. Johnson v. Edmond, 65 Conn. 492, 499, 33 Atl. 503 ; Ingersoll v. Ingersoll, 77 Conn. 408, 410, 59 Atl. 413. In the alternative contingency that she should die without leaving issue, she, by force of the second codicil, takes, as purchaser, a vested interest by way of contingent remainder in one fourth of the same one half of the residuary estate less the homestead. The question whether these several estates and interests in this one fourth of that one-half portion of the residuum which is Miranda’s for life, exclusive of the homestead, shall be regarded as merged, thereby giving her an absolute estate therein, is one which we ought not to undertake to determine upon the facts before us. It would appear to be for her interest to have a merger. Under such conditions the ordinary rule is that a merger results. But to this rule there are exceptions, as where general convenience requires the contrary. Lockwood v. Sturdevant, 6 Conn. 373, 389. In the absence of sufficient practical reasons to the contrary, a merger should be recognized to the limited extent indicated. In addition to such absolute estate as Miranda may have acquired by the merger of estates as aforesaid, she took an absolute estate in the $3,000 legacy contained in the sixth paragraph of the will, and in one fourth of the excess of the net amount of the testator’s estate upon a just valuation and inventory above $100,000. In determining the value of the estate for the purpose of ascertaining this excess, the homestead in which the testator lived should be valued and inventoried at $20,000. In determining what comprised the rest, residue and remainder, one half of which was given to Mrs. Perry absolutely, and the other half to Miranda for life-with remainder over, there should be deducted from the net amount of the *170 estate its excess above $100,000, ascertained as above, tiie amount of the several money legacies contained in the will other than said excess, the amount of the legacy to Henry Bulldey Rodman, and the inventory value of the personal property given to the widow by the third paragraph of the will. The balance, subject to such life use of portions thereof as was given to the widow, represents the residuum. The second codicil gave to the five children of George Bulkley alienable and transmissible estates. Johnson v. Edmond, 65 Conn. 492, 499, 33 Atl. 503. The Superior Court is advised to render judgment in conformity with the foregoing conclusions. In this opinion the other judges concurred.