Bridgeport Trust Co. v. Marsh

Prentice, C. J. The answer to several of the questions propounded for advice is controlled by the construction to be given to the provisions of the fifth clause of the will touching the time when the two classes of payments therein provided for are to be made. The first of these classes comprises those of specific amounts. The persons and corporations made the recipients of them will hereinafter, for convenience sake, be .designated as the special beneficiaries. The second class consists of those corporations to which shares in the final residue are given. They, for purposes of distinction, will be referred to as the general beneficiaries. With respect to the payments to the special beneficiaries, the direction of the will is that they be made by the Trust Company, executor and trustee, “as soon as practicable.” Does this direction mean as soon as practicable after the death of the widow and the consequent termination of the trust, or as soon as practicable after the trust fund comes into the hands of the trustee, or when? The general beneficiaries contend for the first-named construction, the special for the second. .The general beneficiaries rest their contention primarily upon what they conceive to be the indications of the context, and the continuity and order of the provisions of the fifth clause. They assert that this position is fortified by the fact that the trustee is given full charge of the residue and remainder until its final distribution; that it is directed to keep, as far as possible, *393 the same securities it should receive from the estate; and that the payments to the widow are to be from the income from the fund, thus denoting, it is said, its entire devotion to securing that end. Had the provision for the payments to the special beneficiaries been separated from the preceding context by a transition to a new paragraph, instead of immediately following it, as it does, the argument drawn from the continuity of the text, the order of its provisions, and the relations of the one in question to those immediately preceding it, would lose much of its apparent significance. But, as the entire fifth clause is marked by no subdivisions or breaks in the continuity of its expression, no conclusion can fairly be drawn from the unbroken continuity of the text, or the succession of its provisions, which would not be equally justified if the context had been broken by paragraphing. If the testator or draftsman, when he took up the subject of the distribution of the trust fund, after having provided for the termination of the trust, had opened a new paragraph, there would be little force to the argument of the general beneficiaries which we are now considering. In the preceding and introductory portion of the clause there were naturally grouped together those provisions which created the trust, outlined the authority of the trustee in the care and management of the estate, directed the incidental monthly payments out of the income to the widow, and fixed the time for the trust’s termination. This done, the testator then passed, in the natural order of his thoughts, to express his desires as to who should be the recipients of his bounty through the operation of the trust. We discover no inference of significance, to be drawn from his having done so, that it was intended that the payments by the trustee provided for should be postponed to the termination of the trust, and not made as inci *394 dents of its execution. Neither do we discover, in the fact that the trustee was given charge of the fund until it was finally distributed, or that it was to make the monthly payments to the widow out of the fund’s several times larger prospective income, anything pointing to an intention on the part of the testator that the fund was to be kept intact until the widow’s death. The payments to the special beneficiaries made, there would apparently remain in the trust fund substantially $300,000, much more than sufficient to yield an annual income of $6,000, the widow’s requirement; and Mr. Marsh was no stranger to the extent of his fortune. The direction of the trustee to keep, as far as possible, the securities originally forming the fund has more plausibility, but the force of its suggestion is made slight by the limiting words “as far as possible,” which would appear to indicate an appreciation -that compliance with the. directions given would not permit more than a conformity in spirit to the testator’s wish in the matter of retention of securities. The contention of the special beneficiaries rests upon a firmer foundation.- In the first place, the trustee is told to make the payments to them “as soon as practicable.” As soon as practicable after the death of the widow would mean an indefinite continuance' of the trust until after the payments were made, and not a determination at the death of the widow as provided. Dealing with the ultimate residue divided among the general beneficiaries, there is no suggestion of a delay in the division. Apparently the testator intended that it should take place forthwith upon the widow’s decease, and not be indefinitely postponed, or postponed at all, to await the exercise of the trustee’s discretion in the matter of the payments to the special beneficiaries, or for other thaw the ordinary proceedings in such *395 cases. The language of the testator strongly indicates that his intent was that the payments to the special beneficiaries should be made by the trustee as soon as practicable after it should come into the control of the fund as trustee. There are other quite convincing indications to the same effect in the circumstances surrounding the testator and his benefactions. In the second, third, and fourth clauses of the will he had made provision for his wife and special provision for an aged relative, for whom apparently he was desirous of securing the benefit of his bounty without the delay attending the settlement of his estate. The great bulk of his property yet remained undisposed of, and the major portion of his intended beneficiaries had not been remembered. Save for the two cases calling for special consideration, he had reserved what he intended to do in the remembrance of relatives, friends, and charities for treatment in the fifth clause, and through the operation of a trust. Apparently the intended objects of his bounty divided themselves, in respect to the degree of his regard for them and his wish to help them, into two classes. Into one fell all the relatives of himself and his two wives whom he wished to remember, a few business subordinates, and seven charitable or religious institutions. One of these institutions, it is suggestive to note, was the church with which he had been closely and actively associated, and to which he was peculiarly attached. Into the other were grouped twelve miscellaneous corporations of a charitable or religious character. Seven of them were churches, with no one of which did he have special affiliation. With no one of the other five institutions, in so far as it appears, did he hold any specially close relation, or for it have any peculiar feelings of regard, except as its work may have appealed to his philanthropic disposition. *396 Mrs. Marsh, although seventy years of age, was in good health, and with every prospect of several, and not improbably of a considerable number of years, of life before her. There was every probability that not a few of the special beneficiaries,—several of whom were well advanced in life, and among them those who would naturally make the strongest appeal to his benevolence,—would die before her. A postponement of the payments until after her death would thus mean to the individual donees: first, that some, and quite possibly a considerable number, of the testator’s relatives and friends, whom he evidently wished to benefit, would not live to enjoy any benefit at his hands; and second, that all of them would have the benefit which they could derive from his bounty delayed by possibility for years, and its period to that extent shortened. It would mean to the institutions of the first group the same delay in the realization of benefits, and the fate of standing patiently by during the widow’s life as they saw income in large proportions accumulate for the ultimate benefit of the general beneficiaries, and, altogether probably, a situation thereby created which would bring these beneficiaries into the position of the favored recipients of the testator’s bounty. The church to which he had been closely attached, and with whose affairs he had been actively identified, might easily be called upon to witness other churches, unquestionably holding a much lower place in his regard, coming in for a much larger share of property than it in the ultimate division. It is well-nigh unbelievable that the testator intended any such results, and they ought not to be forced upon him without good reason. They could be mitigated only by the widow’s prompt demise, or by a payment out of the income of interest upon the deferred payments. The will contains no direction for the payment of such interest, and it would not be easy to find from the will *397 an intent on the part of the testator that it should be paid. State v. Main, 87 Conn. 175, 87 Atl. 38. The provision that the specific payments be made as soon as practicable contemplates, of course, that the right of the widow to receive her monthly payments be secured by a retention in the trustee’s hands of a sufficient fund to insure their being made. Until that condition can be satisfied, the former payments are to be withheld. It has been suggested by counsel for the general beneficiaries that the excess of income after the payment of the $500 monthly sums to the widow should, as it accrued, be divided among them. We find in the will no warrant for such a course, and if pursued it would only serve to aggravate the situation as far as the special beneficiaries were concerned. Legislation in Massachusetts has authorized the merger, now consummated, of the Mount Hermon Boys’ School and the Northfield Seminary, in the Northfield Schools, now conducted under the same management as the first-named school. The provisions of that legislation in respect to succession and the vesting of bequests render it proper for the trustee, in the due execution of its trust, to make the payment directed to be made to the Mount Hermon School for Boys to the corporation known as the Northfield Schools. Our conclusion as to the time when the duty devolves upon the trustee to make the prescribed payments to the special beneficiaries, removes from the sixth and seventh inquiries all matters calling for further consideration, except as the right of the general beneficiaries to have a division to them, from time to time, of the surplus income of the fund left in the trustee’s hands, after the payments to the widow, may be involved. We have already in effect intimated that the will furnishes no justification for such a division. We are *398 unable to find authority for it. This income accumulates and attaches itself to the fund, which remains intact in the trustee’s hands for distribution upon the termination of the trust. The sums received by the executor or trustee from interest payments on coupons or registered bonds held by the testator, which became payable after his decease, are apportionable between principal and income as of the time of the testator’s death. The reasons which have led to the adjudications that the so-called interest on British Consols, dividends declared on stocks, and periodic payments of money by way of rent, annuities or otherwise, are not apportionable, are not applicable to interest accruing upon bonds representing interest-bearing indebtedness, and the rule is not applicable. Such interest, although not payable until fixed dates, accrues from day to day, and is apportionable like interest which accrues upon any other debt. Greene v. Huntington, 73 Conn. 106, 114, 46 Atl. 883; Wilson’s Appeal, 108 Pa. St. 344, 347; United States Trust Co. v. Tobias, 21 Abb. N. Cas. (N. Y.) 393, 400; In re Rogers Trusts, 1 Dr. & Sm. 338, 341; 2 Perry on Trusts (6th Ed.) § 556; 2 Machen on Corporations, § 1766. Interest payments on bonds which had accrued before the testator’s death, although in fact not paid until afterward, form, of course, a part of the estate. The specific gifts contained in the fifth clause vested upon the death of the testator. Farnam v. Farnam, 53 Conn. 261, 279, 280, 2 Atl. 325, 5 id. 682; Connecticut Trust & Safe Deposit Co. v. Hollister, 74 Conn. 228, 231, 50 Atl. 750. The Superior Court is advised that the specific payments directed by the fifth clause of the will to be made to other persons and institutions than the widow of the testator, are payable by the trustee as soon after its receipt of the trust fund as practicable, consistently *399 with its retention, subject to the trust, of sufficient funds to secure the payment to the widow during her life of the monthly sums payable to her; that the parts or shares of the residue ordered to be distributed by the latter portion of said clause are not to be distributed, even in part, until the death of the testator’s widow; that the trustee is not endowed with a discretion to make anticipatory payments on account of the final distribution of that residue; that the trustee may properly, and in the lawful execution of its trust, make payment to the Northfield Schools of the bequest to the Mount Hermon School for Boys; that the net income which may accrue upon the trust fund, save such as is required to be paid to the widow, may not be divided from time to time, but is to be allowed to accumulate, and thus added to the trust fund; that the sums payable after the testator’s death as interest on the coupon or registered bonds owned by him at the time of his death should be apportioned between the principal and income of the estate as of the time of the testator’s death; that such sums, payable before the testator’s death, but in fact paid thereafter, form a part of the testator’s estate; and that the gifts of the specific sums contained in the fifth clause of the will vested in the donees thereof upon the death of the testator. No costs in this court will be taxed in favor of any party. In this opinion the other judges concurred.