Hartford-Connecticut Trust Co. v. Lawrence

Haines, J. On March 18th, 1918, Adelaide S. Farrington made and executed her will disposing of both real and personal property, naming the plaintiff as sole executor and trustee thereunder, with “full power and authority ... to sell and convey any real estate which may form a portion of my estate or of the trust fund, if such sale should be deemed to be for the best interests of the beneficiaries.” The death of the testatrix occurred July 9th, 1925, and the plaintiff duly qualified and proceeded with the settlement of the estate. After the payment of all lawful claims there remains in the hands of the executor sufficient to pay all the legacies provided by the will leaving a considerable residuary estate. The testatrix was survived by her husband, Martin L. Farrington, who died January 29th, 1926. She had two nieces, Mrs. Grace A. Chase and Mrs. Florence W. Lawrence. The latter survives, but the former died October 5th, 1918, leaving her husband. She left no parents and no children or *181 representatives of children, and her only surviving next of kin is her sister Mrs. Lawrence. By the third paragraph of her will, the testatrix gave Mrs. Chase and Mrs. Lawrence $1,000 each, and added: “If either should die before me, the heirs of my niece so dying shall receive the share to which such niece would be entitled if living.” In the fourth paragraph the testatrix provided that the residue of her estate should be held by her executor in trust, with power to manage and invest it under the laws of this State, and directed that the net income thereof be paid over to her husband during his life. She then directed that upon the death of her husband sundry sums be paid from the fund to designated beneficiaries, and that the remainder “shall be equally divided between Mrs. Grace A. Chase aforesaid and Mrs. Florence W. Lawrence aforesaid, to be theirs absolutely, and the heirs of either who may have died to receive the share to which such deceased beneficiary would have been entitled if living.” Upon the foregoing facts, the controlling question presented to this court for determination is, whether the word “heirs,” as used in the third and fourth paragraphs of the will, includes Mr. Chase. Counsel for the husband claim that the word should not be interpreted in its technical sense of one entitled to inherit the real estate of a deceased person, unless the intent of the testatrix be found to so limit it, while counsel for the niece say it must be so interpreted unless the contrary intent appears. We have held, in effect, that the technical meaning will be given to the word if the intent of the testator to use it in a different sense does not appear; but it is a controlling and equally sound rule of construction, that where the intent can be found from the context and the circumstances that intent shall govern. In other words, the dominant rule in *182 the construction of this term, like all other terms of a will, is that the intent of the testator shall be made effectual if possible. Hartford Trust Co. v. Purdue, 84 Conn. 256, 258, 79 Atl. 581; Ruggles v. Randall, 70 Conn. 44, 48, 38 Atl. 885; Nicoll v. Irby, 83 Conn. 530, 534, 77 Atl. 957; Leake v. Watson, 60 Conn. 498, 508, 21 Atl. 1075. The original and underlying reason for presuming that the word “heirs” referred to those who would inherit real estate was that that was the historical significance of the word and it was more probable than otherwise that the testator understood it to have that meaning. Under the feudal conceptions of the early English law, the descent of real estate was of primary importance, while the descent of personal property was of little consequence. Not only as a word of art, but in common parlance, the word “heirs”' thus signified those who inherited real estate.. While the rule came to us from this source, the reason for it has never existed to any extent in this country. In the absence here of the historical feudal background, the sanction for the technical definition of the word seems to be largely lacking. On the contrary, our conception of property has never given predominant importance to real estate. The popular conception of inheritance in this country includes personal as well as real property; the historical distinction between the two has disappeared and today personal property is of equal importance with real estate as the subject of inheritance. Indeed, we cannot reasonably assume that a testator today, in the use of the word “heirs,” intends to suggest only one who inherits real estate, but rather one who inherits property generally. As a matter of fact, there are probably few testators who ever heard of the historical meaning of the word. It has acquired a broader meaning and is defined in dictionaries as those who inherit property *183 generally. Its original or historical meaning is given secondary place only and may fairly be said not to exist at all in the popular mind. Since the intent of the testator is always the controlling purpose of the construction of wills, this modem conception of the word in the popular mind cannot rightly be ignored. Usage makes language, and the historical significance of this word being largely lost, the intent of those who make wills will obviously best be found by giving it the popular and generally understood meaning. To adhere to the historical meaning under such circumstances would more often than otherwise defeat the real intent of the testator. The will before us illustrates the force of these observations. Four gifts of corporate stock are made to named beneficiaries, and in each case the testatrix uses the phrase “to be hers and her heirs forever.” A surviving husband or wife could not fairly be said to be an “heir,” when the word was restricted to those who inherit real estate and when the only rights they had by our law were estate for life, by curtesy or dower, having their origin not in succession at death, but in the pre-existing marital status. In Connecticut since 1699, surviving wives have taken a share in a husband’s property by virtue of the law for the distribution of intestate estates. 4 Colonial Records, 306. In 1877, dower and curtesy rights, as regards any marriage thereafter contracted, were abolished and a surviving spouse was put on the same plane in the right to inherit, and in the event of intestacy took a certain share by absolute title. Public Acts of 1877, Chap. 114. We pointed out in Mathewson v. Mathewson, 79 Conn. 23 63 Atl. 285, that a radical change of policy was adopted by this Act and that all existing statutes giving to either husband or wife any right to or interest in the property of the other either during *184 marriage or after death—other than those under the new status—were repealed. In Beard’s Appeal, 78 Conn. 481, 484, 62 Atl. 704, we pointed out that as to any share in the husband’s estate the wife might have beyond that secured to her against any testamentary disposition he might attempt, she stood on the same footing as any other distributee. In Harris v. Spencer, 71 Conn. 233, 237, 41 Atl. 773, we showed that either husband or wife may, during life, dispose of his or her property in any lawful way he or she pleases. It thus appears from these decisions that the title of a surviving spouse married after 1877 is one derived at death and by virtue of succession, the same process through which any person acquires title by distribution from the estate of a deceased person. Indeed, the statutes provide that the share of the surviving spouse shall be set out.before that of those who are to share the remainder, and this share includes both real and personal property. The surviving spouse thus “inherits by descent the real estate of the deceased,” and is, since 1877, in fact an “heir” and within the primary as well as the popular meaning .of the word “heir.” While we made reference in Ruggles v. Randall and Hartford Trust Co. v. Purdue, supra, to the historical meaning of the word, and excluded a surviving wife in one case and a surviving husband in the other, it will be seen that they were decided upon the particular facts of those cases. We recognized the same considerations in Morse v. Ward, 92 Conn. 408, 411, 103 Atl. 119, and in Beach v. Meriden Trust & Safe Deposit Co., 98 Conn. 821, 824, 120 Atl. 607. In the latter we said: “‘In fact, the word “heirs” has been so often used and construed as including all who would inherit either real or personal estate, that there is no longer any good reason for insisting upon its technical *185 significance, except where the intention to use it in that sense is apparent.’ ” See also Lavery v. Egan, 143 Mass. 389, 391, 9 N. E. 747; Weston v. Weston, 38 Ohio St. 473, 478; Turner v. Burr, 141 Mich. 106, 111, 104 N. W. 379; Anderson v. Groesbeck, 26 Colo. 3, 13, 55 Pac. 1056. It follows that even if we were to give the word “heirs” only its primary meaning, it would include Mr. Chase; but we should go further and examine the circumstances surrounding the testatrix when she made this will, and which were known to her at the time, and which she is presumed to have had in mind when the will was drawn. Her husband was living and she had no parents or children or descendants of children. The husband, and her two nieces, Mrs. Chase and Mrs. Lawrence, were obviously the persons to whom her chief thought was directed. She gave the husband the life use of the entire estate, and then provided that upon his death certain specific gifts be made to others, and the remainder of the fund “equally divided” between Mrs. Chase and Mrs. Lawrence, “to be theirs absolutely.” Had Mrs. Chase survived the testatrix, this remainder would have been divided into two equal parts, each niece taking an absolute title, and two lines of future descent of the estate would have thereby been established. That this was clearly her intent does not, we think, admit of reasonable doubt. We do not think the provision for these two nieces necessarily suggests a wish to keep the property to blood relatives as distinguished from others. There were no opposing claims of kinship either by blood or affinity. These two nieces were the only kin the testatrix had. When she made her will in March, 1918, Mr. and Mrs. Chase had been married about eighteen years and were childless. Some months after the will was made, Mrs. Chase died childless, and her husband still survives. It is significant *186 that for seven years thereafter to her death in 1925, the testatrix made no change in the provision for Mrs. Chase and her heirs, and it still stands as originally written. Had she desired after the death of Mrs. Chase, that her remainder estate should not be ultimately divided into two equal parts, but should remain undivided and go to the surviving niece and ultimately to the “heirs” of that niece only, it is only reasonable to believe she would have said so, either by providing that the share of the deceased should go to the survivor, or by other appropriate language. There is nothing to be found in the will indicating an intent to give either niece,, in any contingency, more than one half the remainder, quite the contrary. In this respect the case has much analogy to that of Beach v. Meriden Trust & Safe Deposit Co., 98 Conn. 821, 825, 120 Atl. 607. It was natural for the testatrix to believe that each niece would have legal heirs in the event of death, and we may fairly assume that she knew the statute laws of the State when she made this provision and during the seven years following the death of Mrs. Chase, and that her plan for the division of the remainder into two parts would be carried out. As counsel for Mrs. Lawrence say in their brief, “the will of the testatrix indicates a knowledge of the law applicable to wills.” We may presume that she knew in 1918, that the surviving husband of Mrs. Chase would be given preference over sisters, by the laws of this State, and would be entitled upon the death of the latter in 1918 to a share, or after 1921, to all, the property of the deceased. She clearly contemplated, when the will was drawn, that the nieces would be equal recipients of her bounty, and we feel sure she understood and intended that the word “heirs” which she used, would carry the property of either niece who predeceased her to those whom the statute *187 law of this State designated as her heirs. This is a common and natural view of the meaning of the word and one which every married person with property today understands. Not only is a contrary intent not shown, but the language used and the purpose indicated point to this as the interpretation necessary to carry out her actual intent. “It frequently happens that legatees die during the lifetime of the testator. The testatrix could have provided for such a contingency by giving it to the survivors, or to other parties. She did neither. There is therefore some presumption that she intended that the law should settle the matter. That presumption is strengthened by the facts that she had an opportunity to change her will after one or more of the legatees had died, and failed to do so.” Bill v. Payne, 62 Conn. 140, 142, 25 Atl. 354. As to the meaning of the word “heirs” in the present case, the claim is made in behalf of Mrs. Lawrence, that the cases of Ruggles v. Randall, 70 Conn. 44, 38 Atl. 885, and Hartford Trust Co. v. Purdue, 84 Conn. 256, 79 Atl. 581, “are decisive of the principal case”; but it appears upon an examination of those cases that the result was reached by the same means we have adopted here. The opinions show a careful examination and consideration of the surrounding facts, and from that the court reaches its conclusion as to the sense in which the testator used the word “heirs.” We find vital differences in comparing those facts with the ones before us. As stated elsewhere in the same brief, “precedents are not of controlling force, unless they are strictly analogous.” Cases are numerous where the statutory interpretation has been put upon the word “heirs.” Morse v. Ward, 92 Conn. 408, 410, 103 Atl. 119; Tingier v. Chamberlin, 71 Conn. 466, 469, 42 Atl. 718; Dicker-man v. Alling, 83 Conn. 342, 345, 76 Atl. 362. In *188 Lavery v. Egan, 143 Mass. 389, 9 N. E. 747, the court, speaking of intestate estate, said (p. 392): “An heir ... is he upon whom the law casts an estate of inheritance immediately on the death of the owner.” In that case it was held that a husband or wife, under the statute of distributions, took precisely as an heir takes and were to be considered as statutory heirs, and this was followed in Lincoln v. Perry, 149 Mass. 368, 374, 21 N. E. 671. In behalf of Mrs. Lawrence it is contended that in dividing the estate between her and her sister, Mrs. Chase, the testatrix evinced an intent that the property should go to the heirs of the blood and the will should therefore be construed to exclude Mr. Chase. These two nieces were the only next of kin the testatrix had. They were the natural objects of her bounty, and giving the property to them does not necessarily suggest that she wished to limit her bounty to the blood. On the contrary, if she had wished to keep the property with heirs of the blood, we would look for that intent in some provision by which the .survivor should take in default of issue, but the will makes no provision for survivorship or issue. Obviously Mrs. Farrington was content, upon the death of either niece without issue, that the share of that niece should go, not to her own heirs, but to the heirs of the niece, and she of course realized it was impossible for her to know at the time she made Ker will, who those heirs would be. In Gray v. Whittemore, 192 Mass. 367, 78 N. E. 422, the court upon similar reasoning said, at page 383: “We cannot override his plain words upon the strength of an imagined general intent which he has neither expressed nor manifestly implied, and which would be at variance with the language which he has used,” and decided that surviving husbands were “heirs” of their deceased wives. And in similar circumstances .in Sher *189 burne v. Howland, 239 Mass. 439, 442, 132 N. E. 188, the court said what is true in the instant case: “There is not any predominating and pervading purpose apparent from the words of the will that none save blood relatives should share in his bounty, or that husbands and wives should be shut out provided they come within the sweep of the general classification legal heirs.’ ” It is urged in behalf of Mrs. Lawrence, that the will requires us to determine the heirs of Mrs. Chase at the time of her death in 1918. The general rule is that a will speaks from the death of the testator. “The will, like every other, is to be read as if executed at the moment of the testator’s death. Whoever were, at that time, her [the beneficiary’s] heirs, in the sense in which he employed that word, are to take, without regard to whether they did or did not answer that description at her decease.” Ruggles v. Randall, 70 Conn. 44, 48, 38 Atl. 885. Sometimes, however, the language may be such that rights under it must be determined as of some other time. So if the word “now living” be used, they must refer to the time of making the will. Gold v. Judson, 21 Conn. 616, 622. Examining the will before us, we find in the third paragraph, giving $1,000 each to these nieces, the testatrix says: “The same to be payable at my death and to be their and their heirs forever. If either should die before me, the heirs of my niece so dying shall receive the share to which such niece would be entitled if living”; and in paragraph four (f) she says: “The remainder of the trust fund shall be equally divided between Mrs. Grace A. Chase aforesaid, and Mrs. Florence W. Lawrence aforesaid, to be theirs absolutely, the heirs of either who may have died to receive the share to which such deceased beneficiary would have been entitled if living.” None of this speaks as of the death of Mrs. Chase. In the third paragraph she refers spe *190 cifically to her own death. It is all prospective, looking to a future date, and that date is the date of the death of the testatrix. The construction contended for would require us to read into the language used a designation of the heirs as .those who were such at the time of the death of the beneficiary. We can see no warrant for taking that liberty with the language of the testatrix. These provisions clearly indicate that upon the death of the testatrix, if it were found that one of the nieces had died, it was to vest in the then living heirs of that niece. We see nothing which permits us to vary the general rule of construction. So, the result would be the same if the date to determine the heirs were held to be that of the death of the life tenant as we find the intent to be in circumstances disclosed in Beach v. Meriden Trust & Safe Deposit Co., 98 Conn., 821, 826, 120 Atl. 607. In the instant case, the life tenant, Mr. Farrington, died in 1926. On the other hand, if as claimed by counsel for Mrs. Lawrence, the heirs were to be determined at the death of Mrs. Chase, Mr. Chase was even then a statutory heir. Though his status as such would have been fixed at that time, the extent of his right to take would be determined by the law of 1921 in force at the time the estate vested, and no redefinition of the class would have been necessary. His right to the whole fund would have remained the same. In answer to the first question propounded to us: Marcus Chase is the sole heir of Grace A. Chase under the provisions of the Third Article of the will of Adelaide S. Farrington; and in answer to the second question: Marcus Chase is the owner of the vested remainder under the provisions of Article Fourth (f) of the will of Adelaide S. Farrington. In this opinion Maltbie, Hinman and Jennings, Js., concurred.