Landers v. Dell

Festh, J. This is a case reserved, claiming an adjudication as to the construction and effect of - certain clauses contained in the will of Jane H. North, late of New Britain, deceased. The seventh paragraph of the will, upon which the questions arise, is very long, and it will be sufficient to state its substance, without fully reciting it. By that paragraph all of the large residuary estate of the testatrix is devised to persons named, in trust, to invest and hold, paying the income to the daughter of the testatrix, Mrs. Florence B. Dell, during life, for her sole and separate use, with a provision that if said daughter should die leaving a child or children living at her death, and before the youngest child arrives at the age of twenty-one years, so much of the income as necessary be paid quarterly for the education and support of such children until the youngest arrives at twenty-one; that the surplus income be added to the principal; that when the youngest living child becomes twenty-one the trustees divide one fourth of the principal among the children then living, (the children, if any, of a deceased child, to be entitled to what would have been the parent’s share) one fourth ten years later, and the balance ten years after the second payment. To which is added this further provision — that if the daughter should die leaving no children, or die leaving children and they should all die leaving no children, then, in such event,' the niece of the testatrix, Mrs. Hendrick, should receive five thousand dollars, and the rest should go to the sister of the testatrix, Mrs. Stillman, and her friend, Mrs. Cowan, in equal shares. • - *191 Inasmuch as all the law relating to the various questions propounded, seems to have been settled in recent and well-considered cases in this state, we shall in replying to such questions confine ourselves within narrow limits. We think that the provision of the will holding the principal intact until the youngest child of the daughter of the testatrix shall reach the age of twenty-one years before any portion of the corpus can be distributed, then making such division among children, if any, of a deceased child or children of such daughter, violates the statute of perpetuities, since these children, who may be the only persons in esse at that time, would not be the immediate issue or descendants of the daughter or of any person in being at the death of the testatrix. It is, however, the contention of counsel in support of the will, that these possible grandchildren of the daughter, if they take at all under the will, do so by inheritance and not by purchase. In other words, that the children of Mrs. Dell, as a class, take the equitable title, the legal title having vested iu the trustees upon the death of the testatrix. It seems to us that this claim is fully and conclusively answered by the reasoning of this court in Andrews v. Rice 53 Conn., 566. According to the principles laid down in Wheeler v. Fellowes, 52 Conn., 247; Andrews v. Rice, 53 Conn., 571, and in the late and still unreported ease of Beers v. Narramore, the trust continues during the life of Mrs. Dell, and terminates at her decease, subject to which trust the fee is vested in Mrs. Dell as heir at law of the deceased. The Superior Court is advised accordingly. In this opinion Andrews, C. J., and Seymour and Torrance, Js., concurred.