Gay v. Dibble

*593 Andrews, C. J. The primary gift in the will of Oliver Clark, which is the subject of discussion in this case, is expressed in these words: “ All the remainder of my estate I give and bequeath to my grandddaughter Alice M. Gay, daughter of Wm. P. Gay, and the said Alice shall own in fee simple at the death of my wife all my real estate the use of which I have hereinbefore devised to my wife.” The subsequent gift in the will is this: “In case of death of said Alice during her minority—or without issue or children afterward—then the bequest to Alice shall be distributed and divided as follows: one half of said bequest shall belong to Wm. P. Gay, and the other half shall be divided equally between the following persons: Susan J. Dibble, wife of Harvey E. Dibble of East Granby, Miranda S. Gallagher, wife of James Gallagher, and Susan Jacobs of New Haven, and Mrs. Sabra Ann Filer of East Windsor, Conn.” There is no question but that the primary gift, by its terms gave to the plaintiff, Alice M. Gay, an absolute fee title to the real estate which had belonged to the testator, and which, now that the wife of the testator is dead, vests in her. The question upon which the advice of this court is asked is whether or not that absolute fee is reduced to a lesser estate by the subsequent gift. The rules to be observed in answering that question have been very recently stated by this court in Mansfield v. Shelton, 67 Conn. 390, 397. “First. If the primary gift conveys and vests in the first taker an absolute interest in personal, or an absolute fee simple in real property, it exhausts the entire estate, so that there can be no valid remainder. Second. A life estate expressly created will not be converted into a fee, absolute or qualified, or into any other form of estate greater than a life estate, merely by reason of there being coupled with it a power of disposition, however general or extensive. Third. An express gift in fee will not be reduced to a life estate by mere implication from a subsequent gift over, but may be by subsequent language clearly indicating intent and equivalent to a positive provision. Fourth. Except as restrained by the foregoing limitations—indeed in some instances apparently impinging *594 upon them—the question as to whether the primary gift is in fee, so as to exhaust the entire estate, is in each case to be decided upon a careful examination of the entire will, aided by legitimate extrinsic evidence, to ascertain the actual intent of the testator; which intent, when so discovered and made obvious, is controlling.” Browning v. Southworth, 71 Conn. 224. Here the primary gift is in terms a fee simple to Alice M. Gay. This is not to be reduced to any lesser estate by implication from the fact that there is a subsequent gift over. Webb v. Lines, 57 Conn. 154; Methodist Church v. Harris, 62 id. 93. Unless, then, there is in that subsequent gift something that is “ equivalent to a positive provision ” that the fee simple shall be cut down to a defeasible fee, or a fee tail, the absolute fee simple remains. Let us examine this. The testator had given the use of all his estate to his widow for her lifetime. Alice took nothing in enjoyment till that life estate ended. At the time the will was made she was about sixteen years old. She was the testator’s only descendant. Her mother had been the only child of the testator, and she was the only child of her mother. Pier mother was dead. Alice was the only person living who was of the blood of the testator. Naturally the testator expected his wife would live for some time, perhaps as long as, or longer than, the minority of his grandchild. It seems to have occurred to him that if Alice should die while his widow was living, there ought to be some further provision for the disposition, of his estate; so the gift over was put into the will. That the testator was thinking of the death of Alice while yet a young person, and not her death at an old age, is made very manifest by the fact that the alternative devise upon her death is of one half of “ said bequest ”—that is the bequest to Alice—to the father of Alice, and the other half to other persons, two of whom were his own nieces and the other two nieces of his wife. All of these were much older than Alice; and there are no words of inheritance in connection with their names. It is true, probably, that in a will words of *595 inheritance are not necessary, as they are in a deed, to pass an inheritable title; but the absence of such words in this will indicates that the testator' was thinking of the death of Alice at so near a time that this gift over would accrue to these persons while they were alive, and not to their heirs, and intended to make this gift so that it would have that effect. This intent will be carried out by reading this clause of the will as intending the death of Alice during her own minority, or without issue or children during the life of his widow. Walsh v. McCutcheon, 71 Conn. 283, 287; Lawlor v. Holohan, 70 id. 87. From all the words of the will, examined in the light of all the circumstances we have commented upon and the others mentioned in the case, we are of opinion that the testator intended to give and did give to Alice M. Gay an estate in fee simple in his lands, defeasible should she die before his widow under age or leaving no surviving issue, and that upon his widow’s death said estate became absolute in Alice M. Gay; and the Superior Court is so advised. In this opinion the other judges concurred.