Hutchinson's Appeal from Probate

Butler, J. In this case the superior court must be advised that the decree appealed from should be reversed. In the first place, it was error for the court to receive and • allow such an account. It is a mere balance sheet, unaccompanied by schedules, and does not present the action of the executors in settling the estate with that distinctness and particularity which a true construction of the statute, the policy of our law, and the decisions of this court, require. Every item of receipt with which an executor is chargeable, received after the filing of the inventory, should be distinctly and particularly entered, either in the account or some appropriate schedule; and so every item of expenditure which is to constitute a charge against the estate should be distinctly and particularly entered, either in th<j account or in a schedule containing all items of a similar class. That is the import of the decisions of Swan v. Wheeler, 4 Day, 137, and Fairman’s Appeal from Probate, 30 Conn., 205; and to the policy which governed those decisions we shall inflexibly adhere. And in the second place, we are of opinion- that the share of Alice in the trust-fund became vested absolutely in the surviving sons and daughters, and should be paid over to them by the executors and credited in the account. This is the clear import of the clause in the will relating to the subject. Upon the death of either of the children without heirs, &c., their share of the trust-fund is to become vested in the surviving sons and daughters equally, and those who legally represent them. The language is technical, “shall become vested;” and technical language, used by one accustomed to draft wills, and who understood its force, is strong prima facie evidence of the intent of the testator, and [304] should prevail in giving a construction to the will unless controlled by some other general or particular intent clearly expressed. There can be no question here in relation to the subject matter. That is a share of the “ trust-fund,” and in every instance in which that term is used in the will it is used to denote the principal, in distinction from the income, of the residue of the estate given in trust to the executors. • The meaning then of the term, “ share of the said trust-fund,” is a share or proportion of the principal of that residue, in distinction from the income. Upon the contingency of death that share or proportion is to become vested in the survivors. It obviously could not vest in them without ceasing to be vested in the executors, and they must necessarily be divested of the trust when divested of the legal title. This construction is not opposed by any general or particular intent. All the residue, and the great body of the estate, is given to the executors in trust, with a provision to pay the income to the children during their lives, and with a subsequent discretion in respect to the time and manner of the payment. So far forth there was a general intent, but it was not exclusive. Absolute legacies were carved out of this trust-fund and given to the children. Moreover this disposition of the share of the deceased child is in precise conformity with the general intent clearly apparent in relation to the disposition by remainder. That disposition, in the event of there being grandchildren, is to them absolutely, and the clause in question includes the legal representatives of any other of the sons or daughters who may be deceased. The including of a class, who are within the general intent to give to the grandchildren absolutely, is strong confirmatory evidence that the testator intended that the share of every deceased child should be discharged from the trust, and be disposed of absolutely. Inasmuch then as the language in question is technical, clearly relates to the principal of the fund, and cannot be operative without divesting the title of the trustees, and the plain import of it is not opposed by any general or particular intent, and is in conformity with the obvious intent in rela [305] tion to the disposition of the remainder, there would seem to bo no room for doubt in respect to the proper construction of the will. The legacy of five thousand dollars to Alice, she having died without issue before the death of the testator, became, on his death, by our statute intestate estate, and should be distributed as such. The superior court is advised to reverse the decree appealed from for these reasons. In this opinion the other judges concurred.