Pierce v. Root

Prentice, J. The administrator c. t. a. of Miss Root’s estate claims that her will is not effective to dispose of that considerable portion of her estate which came to her a few days before her death by the decease of her mother and her brother Charles. By force of our statute (General Statutes, § 292) relating to devises of realty, and the common law governing bequests of personalty, the will must be construed to operate upon and convey all the estate, whether real or personal, of which the testatrix died possessed, unless a contrary intention is affirmatively disclosed by that instrument. Canfield v. Bostwick, 21 Conn. 550, 554; Gold v. Judson, 21 Conn. 616, 622. This intention doubtless need not be expressed in terms, but it must be derivable from the will itself. We examine Miss Root’s will in vain to discover any sufficient indication of an intention on her part to limit the operation of the general and comprehensive language she used in describing the subject-matter of her testamentary provisions. It may be that when she executed the instrument she did not have in her mind the by no *95 means remote possibility that her then modest estate would, before her decease, assume enlarged and even greatly enlarged proportions; and that she did not dictate its terms with that contingency in contemplation. It is difficult to imagine, however, that such was the fact. As to her mother, she must have known and realized their different chances of life, and doubtless was aware that the mother possessed estate. She knew that her brother Charles was a bachelor; that he might well predecease her; that she was one of his two heirs at law, and a natural object of a large share of his bounty, should he leave a will; and, presumably, that he was the man of means he proved to be. It is hard to believe that she was altogether blind to the contingencies in this regard which the future might have in store for her when she made her will. But, if she was, that fact would not be sufficient to create the condition of an affirmative, positive intent which must exist. It is not enough to vary the presumptive effect which attaches to the language the testatrix used, that she had no intent, except such as the law supplies. She must have had a contrary intent. Of the existence of such an intent, the will fails to furnish satisfactory evidence. In fact, the most suggestive feature upon the subject it contains argues strongly against such a proposition. Her provision, contained in the fourth paragraph, looking to “the establishment, maintenance, and support of a free, public library” for a place of the size of Bristol, “using principal and interest for that purpose,” forcibly indicates that she had it in contemplation that she might die leaving a much larger estate than was hers at the moment, and as forcibly indicates her purpose that whatever she might die possessed of should come under the operation of her will according to its natural import. The trustee of the trust fund created by the will con *96 tends, in the interest of possible future-born children to the now childless Theodore, fifty-seven years of age and in feeble health, that the will requires that the income of the fund should be held by the trustee and allowed to accumulate, for the purpose of providing collegiate education to such children. This means that the income must be withheld from Theodore absolutely and forever, since the possibility of children being born to him cannot, in legal contemplation, be at an end until his decease, and the period of gestation thereafter. White v. Allen, 76 Conn. 185, 189, 56 Atl. 519. It means that from now on until that time is reached no one can have any enjoyment of the income, or of any portion of the principal, save as Theodore may have a child which shall arrive at the college education stage; and that, barring the happening of such an event, the entire fund shall be held and its income accumulated. Such a result is by no means consonant with the provisions of paragraphs three and four, and with the testatrix’s intent as shown therein. These paragraphs clearly disclose her intention that her brothers, notwithstanding the provision for the college education of their children, should, if they survived for the requisite period, each enter into the enjoyment of a one-half share of her estate, the one as owner, and the other as the recipient of income. The claim under consideration renders, and under .all possible conditions would render, such a result impossible. The language of the will is not of such inflexible meaning as to render this defeat of the testatrix’s manifest purpose unavoidable. There are three several points of time from which, consistently with the language of the will, it might be said that the identity of the children who might benefit by the educational provision of the trust was to be determined. It might be, as claimed, that point of *97 time when all possibility of children had passed; it might be the time of the death of the testatrix, thus limiting the beneficiaries of the educational trust to children born or en ventre sa mere; or it might be the time of the death of the life tenant, Candace E. Roberts, so that all children then born or conceived should be admitted. It is clear that the first alternative cannot be adopted without defeating the testatrix’s manifest purpose and nullifying portions of her will. It matters not whether the one or the other of the remaining two be accepted as best suiting Miss Root’s expressed purpose, the result will be the same, to wit, that the trust for the educational purposes defined in the will has been fully executed; and that the fund is in the hands of the trustee to satisfy the remaining provisions of the trust. We are of the opinion that due regard for the testatrix’s intent, as disclosed by her will, requires, in the application of familiar rules of interpretation, that one of the two latter constructions should be given to it, with the result stated. Wolfe v. Hatheway, 81 Conn. 181, 185, 70 Atl. 645; White v. White, 52 Conn. 518, 520; Healy v. Healy, 70 Conn. 467, 471, 39 Atl. 793. The Superior Court is advised to answer the first and fifth of the questions propounded in the amended complaint in the negative, and the second in the affirmative, and further to advise that the city of Bristol is entitled to receive from the trustee one half of the trust estate now in his hands, including any accumulated income, the same to be used and appropriated by it, when received, to the uses and purposes, and under the conditions, defined in paragraph four of the will. No costs in this court will be taxed in favor of either of the parties., In this opinion the other judges concurred.