Ansonia Nat. Bank v. Kunkel

• Decision Date: 05 March 1927
• Citation: 105 Conn. 744,136 A. 588
• Court: Connecticut Supreme Court
• Parties: ANSONIA NAT. BANK ET AL. v. KUNKEL ET AL.

136 A. 588

105 Conn. 744

ANSONIA NAT. BANK ET AL. v. KUNKEL ET AL.

Supreme Court of Errors of Connecticut.

March 5, 1927

Appeal from Superior Court, New Haven County; Arthur F. Ells, Judge.

Suit by the Ansonia National Bank, trustee under the will of John T Kent, deceased, and others, Against Gladys Kunkel and others for advice and direction in the administration of the trust and to determine the respective rights of the respondents was tried to the court. From the judgment, respondents appeal. Error on appeal of Gladys Kunkel. No error on other appeals.

Thomas F. Moore and Francis T. Reeves, both of Waterbury, and David E. Fitzgerald, of New Haven, for appellants Arthur Conklin et al.

Thomas M. Cullinan and John J. Cullinan, both of Bridgeport, for appellant Kunkel.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ.

HAINES, J.

The purpose of this action is to determine the proper interpretation of the fourteenth clause of subsection (b) of the will of John T. Kent, deceased, which reads as follows:

" (b) To pay the net income of said trust quarterly in equal shares to my sisters, Annie Conklin and Nora Ford, and my niece, Catherine McCarthy, daughter of my deceased sister, Elizabeth Buckley, so long as my two sisters shall live. Upon the death of either of my said sisters, or of said Catherine McCarthy, to pay the portion of the income of the one deceased, to her issue, the children of any deceased issue to take per stirpes, until the death of the survivor of my two sisters, when said trust shall terminate. Upon the termination of the trust to divide the principal and any accumulation thereof, in three equal parts among the issue of my then deceased sisters, Annie Conklin and Nora Ford, and my niece, Catherine McCarthy, if she be living, but to her issue if she be dead, the children of any deceased issue to take the share of the parent, and the issue in each case to take per stirpes and not per capita. No beneficiary of said trust shall anticipate the payments of income or principal, nor shall any assignment of any interest in said trust be binding on the said trustees."

The plaintiffs seek an answer to the following questions:

" First. Whether the trustees shall pay over to Gladys Kunkel, adopted daughter of Nora Ford, the one-third of the income of said trust, to wit, $983.27, accumulated in said trust from the date of the death of Nora Ford, to wit, May 3, 1925, to the date of the termination of the trust, to wit, the date of the death of Annie Conklin, July 6, 1925.

Second. If said trustees should not pay said income to the defendant, Gladys Kunkel, to what person or persons the same should be paid?

Third. Whether or not upon the death of Annie Conklin, and the termination of said trust, said Gladys Kunkel, adopted daughter of said Nora Ford, takes or should take one equal third part of said trust estate under the provisions of said fourteenth clause of said will.

Fourth. If said Gladys Kunkel, as an adopted daughter of Nora Ford, does not take or should not take one-third equal part of said trust estate, then whether or not said equal third of said trust estate becomes intestate property and should pass as such to the heirs at law and next of kin of the testator, and if the same shall not become intestate estate of the testator, then to whom the same passes or should pass under the terms of the will of the said testator."

The testator made his will October 17, 1923, and died January 21, 1924. The testator, John T. Kent, left as his only heirs and next of kin, Nora Ford, a sister, Annie Conklin, a sister, and two children of a deceased sister, Elizabeth Buckley, to wit, Catherine McCarthy and Helen Franket. Nora Ford died intestate May 3, 1925. Annie Conklin died intestate July 6, 1925, and left eight children, to wit, Benjamin Conklin, Arthur Conklin, Dwight Conklin, John Conklin, Elnora Kellar, Carrie Patrick, Nellie Conklin, and Ethel Conklin, and two grandchildren of a deceased son, Willis Conklin, to wit, Alice Conklin and Harold Conklin.

There are now no living brothers or sisters of John T. Kent, and no children of deceased brothers or sisters save those above named. Nora Ford and Thomas J. Ford were married September 8, 1884, and lived together till her death May 3, 1925. It was the only marriage of Nora Ford, and no child was ever born to her. Thomas J. Ford, her husband, died November 3, 1925. She adopted the respondent Gladys Kunkel, September 21, 1899, who at all times thereafter till her own marriage was known by the name of Gladys Ford.

The testator, John T. Kent, knew and approved of the adoption, and when Gladys was baptized in St. Augustine's church, in Bridgeport, he acted as godfather and sponsor for the child, and he knew at all times that no children were ever born to his sister, Nora. When he made his will, this sister was 61 years old, and Gladys, her adopted daughter, was the wife of Charles F. Kunkel and had four children born to her, all of whom were living, and all these facts were likewise known to the testator. The testator was unmarried, and during the married life of his sister, Nora, was accustomed to visit her two or three times a week and to spend the greater portion of his Sundays and holidays at her home, taking his meals there, and Gladys was generally present at all these times. He attended the marriage of Gladys, October 23, 1916, and gave a wedding gift. A short time after her marriage, Gladys returned to an apartment in the same house in which her mother, Nora, was living, which house was owned by the testator. This is the same real estate which, by the sixth paragraph of his will, he gave to his sister, Nora, for her life use, and devised it at her death to " her children living at her death, to be theirs absolutely and in fee simple." A certificate of devise to Gladys Kunkel was issued by the court of probate for the district of Ansonia. The testator was on affectionate terms with Gladys, and expressed a fondness for her, visited her frequently at her home and at the home of her mother, Nora, always made Christmas presents to her and her husband and their children, and when she was operated upon in St. Vincent's Hospital, Bridgeport, April 19, 1922, visited her there, and made a gift of money to her. He was mentally active, a business man, and a manufacturer, and in good physical condition till two months before his death, when he became confined to his bed.

Aside from Gladys Kunkel, the appeals of the remaining respondents involve in various ways, two main questions: Whether Gladys Kunkel was legally adopted, and whether the devise to the " issue" of Nora Ford, in the fourteenth clause of the will, made Gladys the beneficiary. Since the appeal was filed, however, the claims relating to the adoption have been withdrawn, leaving a single fundamental issue; viz., the proper interpretation of that portion of the fourteenth clause of the will which refers to Nora Ford and her " issue."

It is well established by numerous decisions that the word " issue" in a testamentary disposition may be given its primary meaning of heirs of the body, and descendants in any degree, or a meaning synonymous with the word child as commonly used, according to circumstances.

It has become elementary that whether the word " issue" shall be given the one or the other meaning depends upon the intent with which the testator used it, and this intent is to be deduced from the entire will, considered in the light of the circumstances presumed to be known to the testator at the time he executed the will. Thus, the general scheme of disposition of his estate is often discernible from a study of the whole will; and the reasonable probability or improbability that the testator meant to give the word its primary or other meaning is often determinable from the cricumstances which then surrounded him. When the intent is thus disclosed, the word will be given that meaning which will most effectively carry out that intent, since this is the keynote of testamentary interpretation.

Where the intent is not otherwise clear, certain presumptions may be invoked. One of these is the natural one, that a testator will favor heirs of the blood, and thus, in the absence of a discoverable intent to the contrary, the word will be given its primary meaning.

Another presumption is that a testator designed by his will to dispose of his entire estate and avoid intestacy as to any part of it. Wallace v. Wallace, 103 Conn. 122, 134, 130 A. 116; State v. Smith, 52 Conn. 557, 563; Warner v. Willard, 54 Conn. 470, 472, 9 A. 136; Peckham v. Lego, 57 Conn. 553, 559, 19 A. 392, 7 L.R.A. 419, 14 Am.St.Rep. 130; Belfield v. Booth, 63 Conn. 299, 305, 27 A. 585; Burr v. Tierney, 99 Conn. 647, 654, 122 A. 454. Though these presumptions all obtain in the absence of an intent otherwise clearly disclosed, they always yield to a contrary intent when such intent is established.

Upon these general principles, we have recently stated the rule governing the interpretation of the word " issue," as follows:

" ‘ The term " issue" in a will, is to be construed as a word of purchase, unless it appears from the context and surrounding circumstances to have been used as one of limitation. Its primary, and therefore presumptive, meaning, when used as a word of purchase, is heirs of the body, and includes descendants of every degree. But when the intention of the testator, as evinced by the context and surrounding circumstances, indicates that he used the word " issue," not in its larger significance, but in its more restricted sense, it will be construed so as to effectuate the testator's intent and to be synonymous with children or grandchildren.’ " Wallace v. Wallace, 103 Conn. 122, 132, 130 A. 116,

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