Mansfield v. Mix

Hamersley, J. The ninth clause of the will is certainly not clear. Any precise meaning that may be given involves some liberties with language used. In such case, controlling force should be given to the apparent intent of the testator. Reading the will and codicil in the light of the surrounding circumstances, as found, we think the clause means: I give to my trustees for my son Ernest, one fifth part of my estate, to be held by them for his benefit, until he becomes of age, and afterwards, should he then in their judgment manifest the same characteristics as his elder brothers, to be held by them for his benefit so long as he manifests such characteristics ; otherwise tp convey the property to him in fee when he becomes of age; and in case they should not convey the property to him either when he comes of age or afterwards, the same shall go to his heirs. [76] The will of 1874 shows the intent of Mrs. Mix to treat her five children alike, so far as the habits of her sons will permit. Her desire to give to each son the same absolute estate she gives to each daughter, is plainly indicated. The facts before us show that the two elder sons were addicted to the use of intoxicating liquors in excess of sobriety; Mrs. Mix was satisfied of this, and that neither was, as she states in the will, fit to act for himself. For this reason she gives their shares of her estate to trustees with whom she is well acquainted, to hold for the benefit of her sons until the trustees are satisfied of their reformation and ability to manage their own property. With her youngest son it is different; he uses intoxicating liquors, but not in excess of sobriety. He is seventeen years of age. If at twenty-one he manifests the characteristics of Iris elder brothers in using liquors to such excess as to be unfit to act for himself, she wants to establish the same protection for the property given him as for that given his brothers; otherwise she wants to give him the same absolute estate she gives to his sisters. Clause nine may fairly be held to give effect to this intention. If inferences can be drawn from the codicil, the intention appears even more plainly. Seven years have passed since the will was executed. Ernest is now three years beyond his majority. In the codicil she makes new provisions in respect to her two elder sons and her two daughters, but none in respect to Ernest. The inference is strong that she had herself exercised the judgment delegated to trustees only in case of her death before Ernest came of age; and was satisfied to leave the portion willed to him, unhampered by the trust which she deemed necessary in the case of his brothers. And in the codicil she provides that the portions willed to his brothers may after their death go to Ernest and his sisters absolutely. Ernest having come of age before the testatrix’s death, the gift to trustees until he becomes of age is inoperative; and the judgment by the trustees at the time Ernest shall attain his majority in respect to his capacity to act for himself, which is the condition of the further gift in trust, is impos [77] sible, and that contingent gift also fails. The gift of the beneficial interest to Ernest remains, with the clear intent that he shall have the legal estate. The testatrix must have foreseen the possibility of this condition and have intended in that event to bequeath the property to Ernest. Such an implication is fairly inferable from the provisions of the will. Minor v. Ferris, 22 Conn. 371, 378; Ingersol v. Knowlton, 15 id. 468; Neely v. Phelps, 63 id. 251, 253. The third question stated in the complaint must be answered in the affirmative. The other questions, except so far as they may be involved in this, are not pertinent to the case before us. The Superior Court is advised to render judgment that the property distributed to the plaintiff as trustee for Ernest N. Mix belongs to said Ernest N. Mix, and should be transferred to him by the plaintiff. In this opinion the other judges concurred.