Mooney v. Tolles

Hiotvtan-, J. The will discloses no intention to attach any meaning to “lawful child or children”—the term generally used throughout the will—distinctive from “child or children” as employed once, apparently by inadvertence, in Article Ninth, and “children” appearing in Article Third. “Child or children” manifestly refers and applies and is limited to those standing in the position of first degree. “Issue” is used in the Second, Sixth, and Ninth Articles of the will not in the restricted sense of children but in its primary, usual, and more comprehensive meaning as including descendants in every degree. Hoadley v. Beardsley, 89 Conn. 270, 277, 93 Atl. 535; Bartlett v. Sears, 81 Conn. 34, 39, 70 Atl. 33. The plan of disposition contemplated by the testatrix as to the trust fund created by the Second Article was, *7 clearly, that after the death of her husband, the income of one half of the fund should be paid, during the life of each of her sons respectively, to his child or children in equal shares, and upon his death the principal be paid over to such child or children, if any be living at the decease of such son; but that, if either son should die leaving no child or children, the portion of the principal which would thereupon have been paid to the child or children of such son, had any been living, shall be paid to the “lawful issue” of the other son, that is, to the then living descendants of the latter most nearly related to him, although such relationship be more remote than that of child or children. Article Ninth embodies a plan similar in this respect, as to the residuary estate. The principal question is whether the provisions for the child or children and the issue of Sheldon Tolies includes his adopted daughter, Laurel Tolies. Whether the testatrix intended to include in the gift to children an adopted child depends upon the intention on the part of the testatrix, ascertained from the reading of the will, in the light of all the surrounding circumstances. Middletown Trust Co. v. Gaffey, 96 Conn. 61, 67, 112 Atl. 689; note, 27 L. R. A. (N. S.) 1158. In the determination as to this intention several considerations are to be resorted to. One of these is the adoption statute in effect in the State at the time, it being presumed that the testatrix knew and acted in contemplation of the reciprocal rights and duties resulting from the existing statute. “Where the statutes are broad and comprehensive in their terms, the testator is generally held to have intended to include a child of adoption within the term ‘child or children’; and in those States having a more restricted statute .... [such as those providing that an adopted child, while inheriting from an adopting parent, shall not be *8 capable of taking from other kindred of the adopting parent, by inheritance or by right of reversion] an opposite conclusion is arrived at, in the absence of other elements showing or tending to show an intent to the contrary.” 27 L. R. A. (N. S.) note, 1159, and cases therein set out. “Our statute (§ 4879) . . . belongs to the broad class. By it the adopted child becomes, by the fact of adoption, the child in name and in law of its parents, with all the reciprocal rights and duties existing between them as between natural child and parent, and with the right of inheritance between parent and child and their relatives, the same as though such adopted child were the natural child of such adopting parent.” Middletown Trust Co. v. Gaffey, supra, p. 70. It was stated in that case that if a presumption of intent to use the term “child” in a will as including a child by adoption were to arise from the assumption of knowledge of the law of adoption, it would be out of a statute as broad as ours, and that even though, as in that case, this presumption is held not to arise, yet the existence of the statute “is one of the facts to be considered among the circumstances and environment surrounding [the testator].” An intention that Laurel should be included as a child of Sheldon is clearly indicated by the plan evinced by Articles Second and Ninth of the will. This contemplated that, while the sons were to take no direct benefit, either present or prospective, they were to be relieved, as to each of their children, of the expense of support and education to the extent of his or her share, immediately available, of the income from the residuary estate, under Article Ninth, and, on the death of testatrix’s husband, income from the trust fund created by Article Second. If Laurel be precluded from participation in the income of the portion of these funds allotted to the child or children of *9 Sheldon, this burden, with respect to her, would be imposed upon him, without recourse to the income paid to Sheldon King Tolies, his only natural child if no more be bom to him, however much more than sufficient for the purposes of Sheldon King the income received by him might be. A further consequence would be the destruction of that equality among the children of each son, both as to income and ultimate participation in principal, which the will clearly indicates. An intention to use the word children in the inclusive sense of all who occupied, to and with each of the sons of the testatrix, the position of reciprocal obligations and benefits of a child of such son, whether by blood or adoption, is in harmony with, and its use in that sense is necessary properly to effectuate, this general plan and manifest purpose. Two further rules of testamentary construction are relevant. “One of these is that heirs at law are not to be disinherited unless the intent to do so is clear and strong. . . . Again, as an aid to construction where the meaning is in doubt, that construction will be adopted which most nearly conforms to the statute of distributions.” Ansonia National Bank v. Kunkel, 105 Conn. 744, 752, 753, 136 Atl. 588, and cases cited. In the present case the statutory right of Laurel Tolies to inherit from the testatrix—the mother of her adopting parent—and to share equally with the natural child of such parent, under the statute of distributions, is undoubted. Another consideration is that the presumption that an adopted child was within the intended bounty of his adopting parent does not prevail where the testator is a stranger to the adoption. Middletown Trust Co. v. Gaffey, supra, p. 71. It is significant, however, that in practically all of the cases where this distinction has been given effect, it appears, as it did in the Gaffey *10 case, that the adoption took place long after the testator’s death, and often under circumstances savoring of an attempt to create an heir for the purpose of defeating a gift over conditioned on the nonexistence of children at the termination of the first limited estate. Wilder v. Butler, 116 Me. 389, 102 Atl. 110, L. R. A. 1918B, 119, and note, p. 123; Puterbaugh’s Estate, 261 Pa. St. 235, 104 Atl. 601, 5 A. L. R. 1277; In re Leask, 197 N. Y. 193, 90 N. E. 652, 27 L. R. A. (N. S.) 1158; Reinders v. Koppelman, 94 Mo. 338, 7 S. W. 288; Jenkins v. Jenkins, 64 N. H. 407, 14 Atl. 557; Parker v. Carpenter, 77 N. H. 453, 92 Atl. 955; Cochran v. Cochran, 43 Tex. Civ. App. 259, 95 S. W. 731; Lichter v. Thiers, 139 Wis. 481, 121 N. W. 153; New York Life Ins. & Trust Co. v. Viele, 161 N. Y. 11-22, 55 N. E. 311. It is fairly to be inferred from the authorities that, in determining, whether the adopted child was in contemplation of a testator other than the adopting parent, the weighty consideration was the fact that the adoption, being subsequent to the testator’s death, was not known to him, together with the effect of it upon the distribution of the estate, rather than that the testator was not the adopting parent and might be presumed to be likely to intend to favor his own blood as against a stranger thereto. In the Gajjey case it was said (p. 70) that the fact that the adoption occurred subsequent to the death of the testator was “a circumstance of controlling importance. The testator did not know of the adoption. And we think it inconceivable that he intended by his bounty to the children of Eugene [his son] to include one who might, by adoption, years after his own death, become a child of Eugene.” Conversely, adoption prior to the execution of the will or a considerable time before the death of the testator, coupled *11 with knowledge, on his part, of such adoption and approval thereof, are considerations persuasive of an intent to include the adoptee as a child of the adopting parent. Ansonia National Bank v. Kunkel, supra. In the present case the only natural child of testatrix’s son Sheldon was bom five years before her will was made. Laurel, when only one year old, came to live with Sheldon more than a year and a half, and was adopted nearly a year, before the death of the testatrix. Mrs. Shuttleworth knew and approved of the adoption, and must be assumed to have known, also, the effect thereof in rendering Laurel in all legal respects the equivalent of a natural child of Sheldon. If she desired to deprive her of participation, as such, in her bequests for the children of Sheldon she had ample time and opportunity, between the adoption and her decease, to effect such discrimination by adequate provisions through a change in her will. Her failure to do so is not without significance. Hartford-Connecticut Trust Co. v. Lawrence, 106 Conn. 178, 187, 138 Atl. 159; Bill v. Payne, 62 Conn. 140, 142, 25 Atl. 354. We conclude, therefore, that the intention of the testatrix was such that the provisions in Articles Second and Ninth for the child or children of Sheldon Tolies, and, for the same reasons, the contingent gifts over to his “lawful issue,” made therein, include his adopted daughter, Laurel Tolies. The same is true of the contingent gifts in Article Third to the children of Sheldon and King Tolies. As to Article Sixth, its interpretation is affected by the consideration that, as distinguished from the remainder of the will, the testatrix is therein exercising a power of appointment under the will of her mother, Elizabeth F. King, and with reference to property which, as appears from both wills, was derived by Mrs. King from her husband, and for that reason was seg *12 regated from her other property which she gave to her daughter, Mrs. Shuttleworth, absolutely, and was made the subject of special disposition. As to this, she gave Mrs. Shuttleworth a life estate, only, “with power to dispose of the same by her will. If she leaves no will then the same shall go to my grandsons, now living [Sheldon Tolies and King Tolies] ... or their lawful issue.” It is obvious that the intention of Mrs. Shuttleworth, in exercising this power of appointment by Article Sixth of her will, was to give effect to the disposition indicated by her mother, in her will, so far as was consistent with her own desire and purpose to exclude her sons, Sheldon and King, from direct participation in any of the property passing under her will. It is significant that, in so doing, she makes the same characterization of the legatees as did her mother —“the lawful issue” of my “sons.” Both apparently regarded and treated this particular property as in the nature of ancestral estate. Since Mrs. King’s will was made in 1914 and she died in January, 1921, seven years before the adoption of Laurel Tolies, important considerations which we have mentioned as signifying an intention on Mrs. Shuttleworth’s part to include her, militate against any such intention in the mind of Mrs. King. We think, therefore, that as employed in this Article, “lawful issue” is to be construed, as it would be under the will of Mrs. King, as not including Laurel Tolies, and that those who take under this Article are, therefore, Sheldon King Tolies, the natural son of Sheldon H., and the three sons of King Tolies. The further question is raised as to whether the property carried by Article Sixth should' be distributed between the children of Sheldon and King per stirpes or per capita. As to this, we have held in numerous cases that, in the absence of any direction to the contrary, the per stirpes rule of distribution should be *13 adopted. Stamford Trust Co. v. Lockwood, 98 Conn. 337, 345, 346, 119 Atl. 218, and cases there referred to. In most of these there was some implication of an intent to make a per stirpes distribution, though no explicit direction to that effect, and in some the unequal consequences of a per capita distribution were pointed out as one of the considerations in favor of adopting the per stirpes rule. As in Stamford Trust Co. v. Lockwood, both of these considerations are present in the instant case. Elsewhere in the will where the situation leaves the method of distribution open to any doubt, division “per stirpes and' not per capita” is prescribed. The effect of application of the per capita rule would be to work a pronounced inequality as between the two branches of the family represented by the sons of the testatrix, respectively, since thereby the issue of one of these sons, King Tolies, would receive three fourths of the property passing under Article Sixth, while the issue of the other son, Sheldon, would receive only one fourth—a result inconsistent with that equality between these two branches of the family which characterizes all of the other provisions relating thereto. In Hoadley v. Beardsley, 89 Conn. 270, 93 Atl. 535, it was held that under a provision that the residuary estate be equally divided between the issue of the (five) nephews and of the niece of the testatrix, a per capita division was intended. But both of the above-mentioned considerations appear to have been lacking and the provision that division should be made equally between the children was regarded as strengthening a conclusion that per capita distribution was intended, (p. 283). See also Post v. Jackson, 70 Conn. 283, 286, 39 Atl. 151. All the parties are in agreement, and we concur, that the remaining questions (f, g, and h) should be *14 answered in the affirmative. As to question (a) we answer Yes, to both queries; (b) Yes; (c) No; (d) one half to the children of Sheldon (not including Laurel Tolies) and one half to the children of King; (e) Yes. No costs will be taxed in this court to either party. In this opinion Maltbie, Haines and Banks, Js., concurred. Footnotes [1] Second. I give, devise and bequeath, to my trustees hereinafter named, or to the survivor or successor of them, or to either of them who may qualify and act, the sum of one hundred thousand dollars ($100,000), in trust to invest the same and keep the same invested, and pay over the income therefrom to my husband, Herbert W. Shutttleworth, in quarterly payments during his natural life. On the death of my said husband, said principal sum shall be divided into two portions, and thenceforward my trustees, or the survivor or successor of them, shall invest the principal of one of said portions and keep the same invested during the lifetime of my son Sheldon, and pay over the income therefrom in quarterly payments during the natural life of my son Sheldon, to his lawful child or children, in equal shares, and upon his death, to pay over the principal -of said portion to his lawful child or children, in equal shares, or if he leaves no lawful child, then to and among the lawful issue of my son King, in equal shares, per stirpes and not capita; the *4 other of said portions, after the death of my said husband, shall be invested by my said trustees or trustee, or the survivor or successor of them, who shall keep the same invested and pay over the income therefrom in quarterly payments during the lifetime of my son King, to his lawful child or children, in. equal shares, and on the death of my son King, to pay over the principal of said portion to the lawful child or children of my son King, in equal shares, or if my son King leaves no lawful child, then to and among the lawful issue of my son Sheldon, per stirpes and not per capita. “Third. I give and bequeath to my trustees hereinafter named, or to the survivor or successor of them, or to either of them who may qualify and act, the sum of twenty-five thousand dollars ($25,000), in trust, to invest the same and keep the same invested, and to pay over the income therefrom, to Edna K. O’Sullivan, of Newport, Rhode Island, in quarterly payments dining her natural life, and on her death to pay over the principal to my husband, or if he be then dead, to the children of my sons Sheldon and King, per stirpes and not per capita. “Sixth. I exercise the right and power conferred upon me under the will of my mother, Elizabeth E. King, dated the twenty-first day of July, 1914, as follows: Aside from the sum of one hundred thousand dollars ($100,000) given to me absolutely under the terms of the said will, and aside from the property which I received under the trust deed executed by my mother to The Union and New Haven Trust Company, as trustee, dated April 8, 1915,1 give, devise and bequeath to the lawful issue of my sons, Sheldon and King, the property which was delivered to me by The Union and New Haven Trust Company, as administrator cum testamento annexo of my mother, on June 12, 1923, as the property which my mother received from the estate of her husband, my father. If any of the said property is reinvested during my lifetime, the reinvestment shall take the place of the property so delivered to me. “Ninth. All the rest, residue and remainder of my property, real and personal, wheresoever situated, shall be divided into two portions, one of said portions I give, devise and bequeath to my trustees hereinafter named, or to the successor or survivor of them, or to either of them who may qualify and act, in trust, to invest the same and keep the same invested, and to pay over the income therefrom during the lifetime of my son Sheldon, in quarterly payments, to his child or children, in equal shares, and on the death of my son Sheldon, to pay over the principal to the lawful child or children of my son Sheldon, or if my son Sheldon leaves no lawful child, then to and among the lawful issue of my son King, per *5 stirpes and not per capita; the other of said portions, I give, devise and bequeath to my trustees hereinafter named, or the successor or survivor of them, or to either of them who may qualify and act, in trust, to invest the same and keep the same invested and to pay over the income therefrom to the lawful child or children of my son King, in equal shares, during his natural life, in quarterly payments, and on his death to pay over the principal to his lawful child or children, in equal shares, or if he leaves no lawful child or children, then to and among the lawful issue of my son Sheldon, in eqúal shares, per stirpes and not per capita.”