Hull v. Holmes

Baldwin, J. The present ownership of the estate, of which the life use was left to George W. Noyes, depends upon the construction of the provision creating a remainder in favor of his sister. The estate was to be hers absolutely, after the death of the testator’s grandson William S. Noyes, “in case he shall die, leaving no living issue,” provided that it was “ not to pass to her until after ” the death of *364 George W. Noyes, and subject to an annuity charge during the life of the latter’s wife. The phrase “ die leaving no living issue,” by the rules of interpretation adopted in this State, is equivalent to “ die leaving no surviving issue.” ' St. John v. Dawn, 66 Conn. 401, 407. It carries a plain • implication in favor of any issue of the first taker who may survive him. If employed, in a devise of lands, with reference to his death, without regard to the time at which that event may occur, it may create an estate tail. If, on the other hand, employed with reference to his death in case that event should occur before that of the testator, it may amount to a substitutionary provision. In the will now before us, a vested remainder is first given to William S. Noyes in terms sufficient to convey an absolute title. On the happening of a certain contingency an absolute estate is then limited over to Mary W. Noyes ; but it is “ not to pass to her ” (that is, the enjoyment of it is not), until the death of the father of the first remainder-man. It is not probable that the testator meant to create an estate tail in his residuary real estate, which under our statute (§ 4027) would become a fee-simple in the issue of his grandson, while contemplating the possible vesting of an absolute title in remainder in his daughter before the death of his son. His general intent is better served by interpreting the provision for the issue of William S. Noyes as one to take effect only in case his grandson should die before him. Coe v. James, 54 Conn. 511; Phelps v. Phelps, 55 id. 359; Lawlor v. Holohan, 70 id. 87. The Superior Court is advised that on the testator’s death William S. Noyes acquired an absolute title to the fund in question, subject only to his father’s life interest. No costs will be taxed in this court. In this opinion the other judges concurred.