Loomer v. Loomer

Prentice, J. The questions upon which our advice is asked arise from the provisions of paragraph seven of the will. The paragraph establishes a trust fund and creates a trust therein. The six surviving children of the testator are, beyond question, in terms made the beneficiaries for their respective lives, subject to the termination of the trust in the manner prescribed, of specified portions of the annual income. Certain rights of survivorship are created. The ambiguity in the language employed raises an uncertainty as to the disposition of income in the event of the death of certain of the children. Is no disposition made in anticipation of such a contingency; is there to be an accumulation; are there rights of survivorship ; or is the share of each deceased child, except as otherwise expressed, given to his or her heirs ? *526 In answering these questions we should aim. to gather the testator’s intent, and to that end we are entitled to look at the whole will and its general plan and purpose as disclosed therein. The testator, in the paragraphs preceding the seventh, had made absolute gifts to all his children save one, created a trust for the benefit of that one and his family, and provided for the care of his grandchildren. It is apparent that his controlling purpose in framing paragraph seven was to provide an assured source of income for his children, being especially mindful in that regard of the claims upon him of his two unmarried daughters; and, that done, to make a final disposition of the property the income from which was devoted to that purpose. It is quite as apparent, from the general scheme of the will, that the testator had no intention of unduly favoring one child or stock over another. With these considerations in mind it is not easy to read paragraph seven throughout, without becoming satisfied that by the use of the words “ and their heirs,” in connection with the gifts of income, he meant to indicate that in the event of the death of any of his children the . heirs, of such child, should, subject to the exceptions made, become the beneficiaries of the allotted portion of income in its stead. The language used with respect to the power of sale, and especially the use of the phrase “ adult beneficiaries ” in that connection, and his language with respect to the final division of the trust fund, all emphasize the correctness of the interpretation indicated. There is nothing in the will to indicate any purpose to accumulate income, and the provisions relating to the final distribution of the trust fund, which are in express terms made applicable to the principal only, sufficiently negative the existence of such a purpose. A purpose' to provide for survivorship, except as plainly indicated, is so foreign to everything in the will that it cannot be believed, in the absence of direction to that effect, that the testator intended to adopt a scheme which would inevitably operate to create discriminations between his grandchildren, depend; ing upon the factitious circumstance of the order and time of survival among his children. That the testator made no *527 provision for these contingencies of death, which, in view of the ages of his children, he must have contemplated, we are hound not to assume without satisfactory and convincing evidence to that effect from the will. Such evidence there is not, as we have observed. We have next to inquire as to the validity of this trust to pay income. The claimant under the conveyance by the trustee in bankruptcy, contends that it is invalid under the common-law rule against restraints of alienation, since "it may continue for the gross term of thirty years. There is no rule which limits the continuance of a trust to any period of time. A trust is no more invalid for the reason that it may continue thirty years than is a life estate or estate in fee simple. The essential thing is that the beneficial interest under the trust vest in the cestui que trust within the time limited by law for the vesting of legal estates. Gray on Perpetuities, §§ 282, 322, 412; 2 Wash, on Real Property (6th Ed.), § 1447 ; 1 Perry on Trusts (5th Ed.), § 383 ; In re Walkerly, 49 Amer. St. Rep. (n.) 129; Connecticut T. & S. Deposit Co. v. Hollister, 74 Conn. 228 ; Andrews v. Lincoln, 95 Me. 541. Applying this test, however, the trust to pay income cannot be saved in its entirety. The gift to the heirs, upon the death of a child within thirty years from the testator’s deaths is one which might not vest within the life of the child and twenty-one years plus the period of gestation thereafter. Bates v. Spooner, 75 Conn. 501. - It is possible, however, to sever the trust in the manner and for the reasons set out in the recent analogous case of White v. Allen, 76 Conn. 185, and thus give effect to the testator’s intent until the death of either Lyman, Andrew or Minnie, or the survivor of Martha and Lucy, or the survivor of Lowel and his wife, Lucretia, when the trust must terminate and division of the trust property he made to those entitled under the will to receive it, who will receive it as owners in fee simple. The concluding portions of the paragraph under consideration deal with this subject of the final division. They are not free from ambiguity, but when read in the light of *528 the testator’s intention and testamentary plan, and in connection with the other provisions of the paragraph, it becomes clearly evident that the testator intended by the language he used to give to his children equitable remainders or cross-remainders, in fee, in specific, undivided portions of the trust property, which should vest immediately upon his decease. Upon the termination of the trust, those possessed of the beneficial estate would forthwith become entitled to the legal. The concluding words of the paragraph, which were quite likely incorporated in it to express the purpose of the testator that the title acquired should be an absolute one, cannot, whatever their possible purpose, suffice to give to the testator’s language any other intent and meaning than that indicated, which is otherwise so apparent. It appears, therefore, that the testator’s two sons, Lyman H. and Andrew F., at the time of their adjudication as bankrupts, were each, as cestui que trust, entitled, under the paragraph of the will in question, to receive one eighth of the net income of the trust estate during the continuance of the trust to pay income as aforesaid, and were each the owner of an equitable remainder in fee in an undivided one eighth of the trust estate, with the right to have the full legal title thereto upon the termination of the trust, a It needs no argument to show that upon the adjudication in bankruptcy of Lyman and Andrew, all their remainder title and interest passed to the trustee in bankruptcy. National Bankrupt Act, § 70a. It is, however, contended that their rights to the income under the trust did not so pass. Whatever may be said upon the much mooted question as to the legality of so-called spendthrift trusts, it is clear that the trust in question possesses none of the attributes of the trusts so described. The beneficial interests are absolute, and left wholly unrestrained and under the control of the beneficiaries. Such equitable estates, we have repeatedly held, are alienable, and may be subjected to the rights of creditors upon attachment and execution. Ives v. Beecher, 75 Conn. 564, and cases there cited. The equitable interests in question, therefore, passed to the trustee in bankruptcy, who thus, *529 by virtue of the bankruptcy proceedings, came to stand in the shoes of the two bankrupts as respects their rights under the paragraph of the will in question. As between the trustee in bankruptcy and the claimant Hubbell, to whom, on February 19th, 1903, the former "conveyed the right, title and interest of the two bankrupts in and to the lands in question, we understand that there is no dispute as to their respective rights. The trustee claims that share of the income to which the two bankrupts would have been entitled on February 19th, 1903, had they not been adjudicated bankrupts, and Hubbell claims such share of subsequently-accruing income, and their undivided interests in remainder in the real estate itself. These claims are well founded. The Superior Court is advised (1) that the defendant Birdseye, as trustee in bankruptcy, is entitled to receive from the- trustee under the will two eighths of the net income upon the trust estate designated in the seventh paragraph of the will, which accrued prior to February 19th, 1903, and had not been paid over at the time of the adjudications in bankruptcy, and (2) that the defendant Hubbell is entitled to receive from said trustee, when the same shall become payable by the provision for distribution, two eighths of all the net income which has accrued from said trust estate since said February 19th, 1903, and from time to time, as payable, the like proportion of said income until the death of either Lyman, Andrew or Minnie, or the survivor of Martha and Lucy, or the survivor of Lowel and his wife, Lucretia, and is the owner of an equitable remainder in fee in two undivided eighths of said trust estate limited upon the event of death which shall as aforesaid terminate his right to receive said share of income, with the right to the legal title in fee in said two undivided eighths upon said event, and to a conveyance thereof at that time from said trustee. No costs will be taxed in this court. In this opinion the other judges concurred.