Thomas v. Castle

Prentice, J. This will creates an estate for fife for the benefit of William E. Lewis. Its language plainly limits the trust estate to one for the beneficiary’s fife. There are no words appropriate to a gift absolute or in fee, which subsequent provisions attempt to limit, cut down, or condition. The gifts over which are contained in the sixth paragraph, assuming them to be operative and valid, are, in so far as they relate to realty, contingent remainders. Both gifts de *451 pend upon events which may never happen. The right to enjoy the remainder estate, whether in the present or future, is wholly uncertain as to each class of persons named as possible beneficiaries. 4 Kent’s Comm. (14th Ed.) 206; 2 Cruise’s Digest, 269; Farnam v. Farnam, 53 Conn. 261; Austin v. Bristol, 40 id. 120; Doe v. Considine, 6 Wall. 458, 476. “If the remainder is limited to children living at the death of the life tenant, the remainder is contingent until the death of the life tenant.” Tiedeman on Real Property, § 402. The first remainder being a contingent one and of a fee, the second limitation dependent upon it must necessarily be contingent. 2 Wash, on Real Property (6th Ed.), § 1576; 2 Cruise’s Digest, 279. These contingent remainders are alternate remainders. Each is of a fee, but only one is intended to, or can by any possibility, take effect. The second named is a substitution for the first and not subsequent to it. The one fee is in no way limited upon the other. If the first attaches, the second utterly fails. Such an alternative limitation has been called a limitation with a double aspect. None of the conditions which compel a resort to the doctrine of executory devises to -save the second gift exist. 2 Wash, on Real Property (6th Ed.), § 1575; Tiedeman on Real Property, § 415; 1 Fearne on Remainders, 373; 2 Cruise’s Digest, 280 ; Luddington v. Kime, 1 Raymond Ld. 203; Crump v. Norwood, 7 Taunt. 362; Doe v. Holme, 2 Wm. Bl. Rep. 777; Dunwoodie v. Reed, 3 Serg. & R. (Pa.) 435,452. The situation with respect to the personalty is the same in effect, since remainders therein, dependent upon a life estate, may be created by will. Griggs v. Dodge, 2 Day, 28, 51; Hudson v. Wadsworth, 8 Conn. 348, 361; Langworthy v. Chadwick, 13 id. 42, 46. The contingency contemplated in the first of the alternative provisions never happened nor can happen. The contingency contemplated in the second of the provisions has happened. It happened, as it was bound to do if it happened at all, the moment the life estate ended. 2 Blackstone’s Comm. (4th Ed.) 168 ; 1 Swift’s Digest, s. p. 96. The remainder thereupon—still assuming that the will contains an attempted gift of the remainder and a valid one—became a *452 vested one. The seizin of the real estate, if we apply common-law conceptions and requirements, which had been supported by the intervening life estate then at once passed to the owners in fee designated by the will. - In like manner the title to the personalty passed. What in both cases had theretofore been contingent then became vested. There remains to be considered what interpretation and effect is to be given to the language of that portion of the sixth paragraph of the will which deals with the disposition of the trust property upon the death of William E. Lewis without issue of his body surviving. If it is to be understood as a declaration of intestacy, and that in the event specified the property should be treated and disposed of by the law as intestate estate, the result would be simple. As William E. was the testator’s sole heir at law, the property would, upon the former’s death, pass at once to his estate. If the language is to be construed as expressing a gift under the will, and that gift to the heirs at law of the testator to be determined at and as of the time of the vesting, to wit, the death of William E., the attempted gift would be in contravention of the statute against perpetuities and therefore void. Rand v. Butler, 48 Conn. 293 ; Tingier v. Chamberlin, 71 id. 466. Intestacy with the consequences already indicated would thereupon result. If, in the other possible alternative, the language is to be interpreted as expressing a gift under the will in the event stated, and that gift to the general heirs at law of the testator, that is, his heirs at law as of the time of his death, the same practical result as before would be reached unless, as the consequence of an implication arising from the provisions of the will, the son William E. should be excluded from taking as an heir at law. There is nothing in the will to indicate such an intention on the part of the testator, unless it be by implication from the creation of the life estate in trust for his benefit. In Band v. Butler, 48 Conn. 293, 298, where there was pre- • cisely the same situation, we said that of themselves such facts were clearly insufficient to base thereupon an implication of exclusion. In that case it appeared that the will *453 gave the remainder to the testator’s “heirs at law,” using the plural, whereas the beneficiary of the life estate, who was a grandson, was the sole heir at law not only at the testator’s death but also when the will was made, and also that this grandson was an incapable person. In answer to the claim then made, that the grandson was, upon the facts, by clear implication excluded from the class who took as heirs, we said that in order to justify the giving to the word “heir” a construction different from the usual and accepted one, the intention of the testator must be clear and decisive, and that the facts of the ease failed to so disclose any such intention. See also Gold v. Judson, 21 Conn. 616. For the reasons then given it must a fortiori be said in the case at bar, that no intention on the part of the testator to exclude his son William E. from any class of heirs at law entitled under the will to receive the remainder estate can be made to sufficiently appear. The question of the interpretation of the concluding language of paragraph six need not be pursued further. It is evident that whatever construction be given to it the result must be the same, to wit, that the trust fund in the hands of the plaintiff at the time of the death of William E. Lewis passed by the will to the estate of said William E. Lewis to be administered as a part thereof. The ultimate destination of the property will be determined in the due course of such administration. The Superior Court is advised that the trust property in the hands of the plaintiff administrator and trustee, as set out in the complaint, should be paid over to the administrator upon the estate of William E. Lewis, deceased, when one shall have been duly appointed and qualified, the same to be administered upon, divided and distributed as the estate of said deceased. No costs in this court will be taxed in favor of either party. In this opinion the other judges concurred.