Allen v. Almy

• Decision Date: 20 December 1913
• Citation: 89 A. 205,87 Conn. 517
• Court: Connecticut Supreme Court
• Parties: ALLEN et al. v. ALMY et al.

89 A. 205

87 Conn. 517

ALLEN et al.

v. ALMY et al.

Supreme Court of Errors of Connecticut.

Dec. 20, 1913.

Case Reserved from Superior Court, New London County; Milton A. Shumway, Judge.

Suit by Win. H. Allen and others, trustees, against John T. Almy, executor, and others for the construction of a will of Lorenzo Blackstone, of Norwich, deceased. Case reserved by the superior court for the advice of the Supreme Court of Errors. Decree construing will as stated.

Lorenzo Blackstone, late of Norwich, died in 1888, leaving a widow and five children, to wit, J. De Trafford, William N., Louis L., Frances E., married to Frederick J. Huntington, and Harriet, married to Frederick S. Camp.

By his will he disposed of all the residue and remainder of his estate, after the satisfaction of certain bequests and legacies, and subject to a trust for the life use of his widow in one-third thereof, by directing its division into 18 equal parts or shares, and disposing of those parts. Four of them he gave absolutely to his son William, 1 to De Trafford, 2 to Louis, and 1 1/2 parts to Mrs. Camp. The remaining parts were given to trustees to hold, 3 of them for the life use of De Trafford, 2 of them for the life use of Louis, 1 1/2 of them for the life use of Mrs. Camp, and 3 of them for the life use of Mrs. Huntington, with a limitation over in each case. The testator dealt with the one-third in which his widow was given a life interest in a different paragraph of the will from that in which he disposed of the two-thirds in which such life use was not reserved; but the practical effect was as stated.

The language defining the trusts and the limitation over was in each instance the same. That which related to the share left for the life benefit of Mrs. Huntington reads as follows: "To said Edward M. Gibbs and George D. Coit three of said shares in trust to receive and hold the same and to pay over the net income arising therefrom, after deducting legal costs and charges from time to time, to my daughter, Frances E. Blackstone, during her life, and at her decease to pay over and deliver the same to her issue; but in case of her death, leaving no issue surviving her, then to my heirs at law exclusive of my said daughter."

The widow died in 1896. De Trafford died in 1898, leaving a widow now deceased and one son, who died in 1905 without issue. William died in 1907, leaving a widow now living but no issue. Louis died in 1892, leaving two children now living. Sirs. Huntington died January 13, 1912, leaving a husband but no issue. Executors of the wills or administrators upon the estates of all of these deceased children of the testator and of the testator himself are parties to this action. Mrs. Camp survives, as do her three children,

The estate in the hands of the trustees forming the trust fund created by the will for the benefit of Mrs. Huntington consists of about $200,000 in money and securities. It is this fund which is the subject-matter of this action. The superior court is asked to give its advice in answer to the following questions relating to its disposition:

"(1) To whom and in what amounts shall the present trustees pay over said trust funds?

"(2) What is the meaning of the expression 'heirs at law' in the provision relating to the final disposition of said trust funds after the death of said Frances E. Blackstone without issue, and are the persons thus described the heirs at law of the testator at his decease or at the decease of the cestui que trust?

"(3) Can this expression 'heirs at law' in this connection be construed as meaning children, and, if so, is the reference to children living at the time of the testator's death or at the decease of the cestui que trust?

"(4) in the attempted final disposition of the principal of the several trust funds left for the benefit, during life, of the children of the testator, to wit, J. De Trafford Blackstone, Louis L. Blackstone, Hattie B. Camp, and Frances E. Blackstone, upon their decease, without issue, is there a violation of the statute against perpetuities existing at the time of the testator's death, and, if so, to whom are said funds of the trust created for the benefit of the said Frances E. Blackstone now payable?"

Certain of the parties contend that the gift over "to my heirs at law" exclusive of "my said daughter" is void as controverting the statute against perpetuities, and that the remainder thus attempted to be disposed of is intestate estate of the testator.

The children of Louis contend that the limitation over is to the heirs at law of the testator to be determined as of the time of Mrs. Huntington's death, and that such disposition was not repugnant to the statute against perpetuities properly construed. The claim in their behalf is that they are, between them, entitled to one half of the fund, and Mrs. Camp to the other half.

The representatives of Mrs. Huntington's deceased brothers claim that the gift over is a valid one to the heirs at law of the testator to be determined as of the time of his death, and that the estate of each of the deceased brothers is entitled to one-fourth of the fund; Mrs. Camp being entitled to the remaining one-fourth.

Mrs. Camp concurs with the representatives of her deceased brothers in claiming that the limitation over was not in contravention of the statute for the reasons urged by them, but says that it was a gift to a class with the incident of survivorship so that she, as the sole survivor of the class, is entitled to receive the whole fund.

Wallace S. Allis, of Norwich, for plaintiffs. Morris W. Seymour, of Bridgeport, for the Estate of Ella B. Huntington et al.

Edmund W. Perkins, of Norwich, for Justine B. Perkins et al.

Charles E. Searls, of Putnam, for John T. Almy, Executor, et al. William Waldo Hyde, of Hartford, and Jeremiah

J. Desmond, of Norwich, for Harriet B Camp.

PRENTICE, C. J. (after stating the facts as above). [1-4] "The law favors vested estates." Conn. Trust & Safe Deposit Co. v. Hollister, 74 Conn. 228, 231, 50 Atl. 750; Carpenter v. Perkins, 83 Conn. 11, 17, 74 Atl. 1062. "If two modes of construction are fairly open, one of which will turn a bequest into an illegal perpetuity, while by following the other it will be valid and operative, the latter mode must be preferred." Wolfe v. Hatheway, 81 Conn. 181, 185, 70 Atl. 645, 647; Nicoll v. Irby, 83 Conn. 530, 534, 77 Atl. 957, 958. "The word 'heirs' in its primary meaning designates those who, in the absence of a will, are by law entitled to inherit the real estate of a deceased." Nicoll v. Irby, 83 Conn. 530, 534, 77 Atl. 957; Perry v. Bulkley, 82 Conn. 158, 168, 72 Atl. 1014. "This is the meaning which is to be given to it in the construction and interpretation of wills, unless when read in the light of the circumstances surrounding the testator, it clearly appears from the will itself that he used the words in a different sense." Hartford Trust Co. v. Purdue, 84 Conn. 256, 258, 79 Atl. 581; Wilde v. Bell, 86 Conn. 610, 614, 87 Atl. 8. This is the rule of general recognition. Gardner, in his work on Wills, p. 447, states the pertinent phase of it as follows: "Where the limitation over is to the heirs of the testator, this class is determined as of the death of the testator, in the absence of a testamentary intent to the contrary." To the same effect, see Page on Wills, § 547. We adopted and applied this principle in Johnson v. Webber, 65 Conn. 501, 512, 33 Atl. 506.

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This will furnishes no indication that the testator used the words "my heirs at law" in any...