Birge v. Nucomb

Prentice, C. J. The first question propounded must be answered in the negative. The testatrix having designated no amount of money or other property as the subject-matter of the gift, there was no gift. Whatever conjecture may be entertained as to what the testatrix either intended or would have desired to do, the will must be construed in accordance with what it says and not in accordance with what *73 the testatrix intended or would have wished to say. With unexpressed intent the courts are not concerned. Wolfe v. Hatheway, 81 Conn. 181, 185, 70 Atl. 645; Cornstock v. Comstock, 78 Conn. 606, 612, 63 Atl. 449. The second question must, also receive a negative answer. The language of the fourth paragraph of the will is too clear and distinct in its definition of the beneficial use in favor of Carrie Robbins, to admit of either doubt as to its meaning, or expansion by construction so as to include other purposes than payment of her last sickness and funeral expenses. The concluding sentence of paragraph seven is so inartificially and obscurely expressed that the answer to the third inquiry propounded is by no means free from difficulty. Several constructions have been suggested. One leads to intestacy as respects the bulk of the testatrix’s estate after the termination of life estates to her brothers Daniel and John. The will is too strongly indicative of the testatrix’s purpose and intent to make a complete disposition of her property, to admit of a construction leading to partial intestacy if the language of the instrument admits of a reasonable construction which will avoid that result. Looking to the language employed in that portion of the paragraph which occasions the inquiry, it will be seen that if the intermediate words “to be placed in Savings Bank in trust they to have the use during their lifetime and if necessary a sufficient amount to pay for their last sickness and funeral expenses,” had been omitted therefrom, there would have been expressed in plain and unmistakable language an absolute gift of the two thirds to the two brothers in equal shares between them. It begins with a direction that it be equally divided between them. These words import a gift. White v. Smith, 87 Conn. 663, 667, 89 Atl. 272, The concluding words, “to them *74 their heirs forever,” serve to emphasize the fact of gift and to clearly establish its quality as an absolute one. It only remains to consider what significance is to be attached to the intermediate words above quoted, and whether or not their incorporation into the sentence amounts to a modification of the scope of its other language and a reduction of the quantum of title which, without them, would pass to the brothers: First of all they are not sufficient to create a trust. There is neither a gift in trust, the appointment of a trustee, or other indication that the testatrix intended to vest the legal title in some other person than the brothers, or to commit the custody, care or control of the property to another for their benefit. The gift was in terms to them, and nobody else was given either title, interest or right of custody or control. The legal and equitable titles were thus united in them. The testatrix’s use of the words “in trust” is by no means conclusive of her intention to create a trust, nor did it of necessity operate to create one. Hemingway v. Hemingway, 22 Conn. 462, 470. Neither does the testatrix’s phrase in any other way create rights or impose limitations whose effect is to detract from the absolute character of the gift to the brothers as otherwise expressed. No right or interest, present or prospective, in any person other than they, is recognized. No one is given a scintilla of anything arising out of or concerning the property. Thus the intermediate language in question subtracts nothing from the brothers full beneficial enjoyment of the property set apart for them, and therefore cannot have the effect of cutting down the absolute estate which, without it, would be theirs beyond question. The fact that the testatrix directed that the money be placed in a savings bank with the right *75 in the donees to have the use of it during their lives, and if necessary a sufficient amount to pay for their last sickness and funeral expenses, does not militate against this conclusion. Hemingway v. Hemingway, 22 Conn. 462, 470; Fairfax v. Brown, 60 Md. 50, 57; Curry v. Patterson, 183 Pa. St. 238, 240, 38 Atl. 594. Notwithstanding these provisions, if binding and enforceable (a question we have no occasion to decide), the donees were to have the entire income of the property accruing during their lifetime and no one was to have a share of or interest in it. The absolute gift of all the income of property is a gift of the property itself. Bristol v. Bristol, 53 Conn. 242, 259, 5 Atl. 687. The only alternative construction avoiding intestacy and having a measure of plausibility, is one which gives to Daniel and John life estates with remainders over to their heirs. This construction encounters very serious and seemingly insurmountable obstacles arising from the entire absence of language suggestive of an attempt to dispose of a remainder over, from the difficulty of finding in the language preceding the final phrase “to be to them their heirs forever,” the gift of life estates leaving remainders over to be disposed of, and from the perplexities attending an effort to make that final phrase do duty as embodying a gift of such remainder to the heirs of Daniel and John. The testatrix apparently knew that a fife estate left a remainder undisposed of, and how to make disposition of such remainder. Twice already had she dealt, and dealt not inaptly, with such situations. It would seem strange, therefore, that in this present instance she so far forgot as to leave no recognizable trace of .an attempt to make a gift over. The difficulties attending the construction which finds in the language preceding “to be to them,” etc., the gift of a fife estate sufficiently appears from the *76 discussion hereinbefore had. Those which are met in an effort to discover in the phrase last referred to— from which the word “and” manifestly, was omitted by inadvertence — a gift to the heirs of Daniel and John, are manifold. They include wresting a common and familiar phrase from its accustomed meaning and use as words of limitation, to make them do an entirely novel duty for which as a matter of everyday English they were most inappropriate. The testatrix must have been not unfamiliar, at least in a general way, with the proper and ordinary use of this bit of legal phraseology. She had six times already resorted to it, and üsed it quite correctly and in such way as to indicate clearly that she was not so ignorant of its true significance and of the meaning of ordinary English as to imagine that it was a suitable phrase to use for the purpose of making a gift to a person’s heirs taking as purchasers. There is also difficulty arising from the presence of the word “them.” This must be eliminated or ignored, or some satisfactory excuse given for its presence. As the phrase stands, whatever gift is made to heirs is also made to the brothers for whom “them” stands. John, having predeceased the testatrix, his sister, his issue took what he would have taken had he survived her. General Statutes, § 4945. . In view of the conclusions hereinbefore reached, the fourth question does not call for answer. The Superior Court is advised to render judgment answering the first two of the questions propounded for advice in the negative and that the third be answered by adjudging that under the seventh paragraph of the will Daniel Woodruff took an absolute estate in one half of the two thirds of the remainder therein referred to and the issue of John Woodruff, to wit, Louise, Lily,. Hamilton and Dudley Woodruff, the *77 other half of said two thirds in equal shares between them. No costs in this court will be taxed in favor of any of the parties. In this opinion the other judges concurred.