Tingier v. Chamberlin

Torrance, J. Under the will of her husband, Mrs. Eunice Chapman had the power to dispose by will of the remainder of her husband’s estate, after her life use thereof, to such persons, except Otis and Ambrose D. Snow, and in such portions, as she pleased; and under the law she had the power, of course, to dispose of her own estate by will as she chose. By her will she gave her son Doremus, through her trustee, the life use of the property belonging to both estates, and concerning this disposition of such property no question is made in the present case. She further provided in her will, that Avhat remained of this property after the death of Doremus should go “ to those. persons who are the natural heirs-at-law of my said son at the time of his decease.” Whether this is a valid or a void disposition is substantially the only question in the case; and its validity must be determined by the law as it was when her will took effect in 1884. Security Co. v. Snow, 70 Conn. 288, 292. At that [469] time the statute against perpetuities (§ 2952, Rev. Stat. 1888) was in full force, though it has since been repealed. Public Acts of 1895, Chap. 249. Under this statute, as construed by this court, the issue or descendants of persons unborn at the death of a testator cannot take under his will; and a gift, devise, or bequest, which may by possibility offend against the statute in this respect is void and of no effect. This has been the construction put upon the statute, whenever its construction has been before this court, for a period of nearly seventy years, from the decision in Allyn v. Mather, 9 Conn. 114, in 1832, down to that in Security Co. v. Snow, supra, in 1898. This uniform construction, for so long a period, has acquired the force of a fixed rule of property, and is no longer open to doubt or question. If a gift, devise or bequest offends against the statute as thus construed, it is void and of no effect. That the disposition here in question does thus offend against the statute, is clear beyond all question. The testatrix used the words “ heirs at law ” of Doremus, not as meaning his children, but in their natural and proper sense, as including all those persons who shall be capable of inheriting from him or taking his property under the statute of distributions, if he died intestate. In the clause under consideration those who are to take are expressly and with great precision described as his heirs at law, in the strictly technical sense of those words, and there is nothing in any other part of the will which in any way qualifies or modifies this descriptive language. Under such a description, all of the property remaining, of both estates, may go to the issue or descendants of persons not in being when the testatrix died, and the gift over is therefore void. The Superior Court is advised that the disposition made in the fourth clause of the will of Eunice Chapman, to the heirs at law of Doremus, is void; and that the property in the hands of the plaintiff belonging to the estate of Eunice Chapman, and to the estate of Elijah S. Chapman, is intestate estate, and is to be dealt with and disposed of as such. [470] In this opinion the other judges concurred, except Hamersley, J., who dissented.