Bartlett v. Sears

• Decision Date: 25 June 1908
• Citation: 81 Conn. 34,70 A. 33
• Parties: BARTLETT v. SEARS et al.
• Court: Connecticut Supreme Court

70 A. 33

81 Conn. 34

BARTLETT

v. SEARS et al.

Supreme Court of Errors of Connecticut.

June 25, 1908.

Case Reserved from Superior Court, New London County; George W. Wheeler, Judge.

Suit by Francis Bartlett, trustee, against Herbert M. Sears, trustee and executor, and others, for the construction of the will of John F. Slater. Reserved, on a finding of facts, for the advice of the Supreme Court of Errors.

Suit by a trustee under the will of John F. Slater, late of Norwich, deceased, who died in 1884, for the construction of certain provisions in the will, which was made shortly before his decease, and admitted to probate shortly after it. The action was brought to the superior court in New London county, and reserved on a finding of facts for the advice of this court at its term, to be held in the Second judicial district in October, 1908. By stipulation under Gen St 1902, § 483, the cause was then transferred for trial at the June term, 1908, in the Third judicial district, and heard there. Advice that none of the estate affected by said provisions is intestate. The will is printed in full in the report of Bartlett v. Slater, 53 Conn. 102, 22 Atl. 678, 55 Am. Rep. 73.

Charles C. Russ, for plaintiff, Francis Bartlett, trustee.

Walter S. Schutz and Stanley W. Edwards, for Herbert M. Sears, trustee under will of Caroline B. Sears.

Anson T. McCook, for Herbert M. Sears, executor. William F. Henney, for Elizabeth and Phyllis Sears, minors. Edward M. Day, for executor and residuary legatee.

BALDWIN, C. J. (after stating the facts as above). None of the parties in this cause reside in this state, but it was properly brought in New London county, since it concerns the disposition of a trust fund established by the will of a citizen of Norwich, admitted to probate by the court of probate for the district of Norwich; and all the defendants have entered appearances. John F. Slater, the testator, bequeathed to the plaintiff $1,000,000 in trust, "to hold, sell, invest and reinvest the same at public or private sale from time to time in such manner as he may deem prudent, and to pay the income arising therefrom or such portion thereof as he may consider best, and at such times as he sees fit to my granddaughter Caroline Bartlett during her natural life. Any portion of said income which shall not be so paid over to her by said trustee shall be invested by him and form part of said trust estate with like powers as to investment, sale and reinvestment." At the date of the will the testator was 69 years old, and Caroline Bartlett was 13 years old. This granddaughter and his son, William A. Slater, were his only heirs at law. She afterward became the wife of Herbert M. Sears, and died in 1908, leaving two minor daughters as her sole surviving issue. The will contained this further provision: "Upon the decease of my said grand daughter if she shall survive me leaving issue, otherwise upon my death if my said grand daughter shall leave issue surviving me, then to pay over and distribute said trust fund and any undistributed income thereof to and among and in trust for such issue of my deceased grand daughter in pursuance of the terms of any instrument in the nature of a will executed by such deceased grand daughter according to the laws of this state, or in the absence of such instrument executed by her, then to pay over and distribute the same equally among such issue. If my said grand daughter shall die before me leaving no issue surviving me or shall survive me and die leaving no issue surviving her, then upon the happening of either contingency three hundred thousand dollars of said trust fund shall be paid to said Francis Bartlett as and for his own estate, and the remainder of said trust fund, principal and interest shall be paid over and distributed by said trustee to my heirs-at-law." The trustee asks us whether these dispositions of the remainder are valid.

The primary and usual meaning of the term "issue," when used as a word of purchase, is descendants of every degree. Davenport v. Hanbury, 3 Ves. Jr. 258; Leigh v. Norbury, 13 Ves. Jr. 340; Hawkins on the Interpretation of Wills, *87; Soper v. Brown, 136 N. Y. 244, 32 N. E. 768, 32 Am. St. Rep. 731; Pearce v. Rickard, 18 R. I. 142, 26 Atl. 38, 19 L R. A. 472, 49 Am. St. Rep. 755. It was used by the testator as a word of purchase, and not of limitation. His granddaughter had no full life estate, since the trustee, at his discretion, could withhold any part of the income from her, and her issue, should she leave any surviving her, were to take a very different estate, proceeding from her exercise of a power, or in default of that, from a direct bequest. The primary and usual meaning of a term used in a will is to govern, unless the context shows that the testator employed it in a different sense, if, thus construed, the provisions of the will, as applied to his estate, have an intelligible and sensible import. Leake v. Watson, 60 Conn. 498, 506, 21 Atl. 1075; Connecticut T. & S. D. Co. v. Chase, 75 Coun. 683, 692, 55 Atl. 171. It was obviously the intention of the testator, in the will now in question, to secure to Caroline Bartlett and her descendants, if any, who might survive her, the entire benefit of the trust fund, subject to the trusts which he had established as to her, and she might establish as to them. Such an intention was natural and reasonable.

There are but two clauses in the will which, by possibility, could be considered as indicating an intention to use "issue" otherwise than as expressive of its primary and usual meaning. One is that providing for the event of his granddaughter's dying before him leaving issue. It is argued that while a man of 69 might well anticipate the marriage of a girl of 13, and the contingency of her death, leaving children, during his own lifetime, it is highly improbable that he should contemplate living to see her have grandchildren. That event, however, might have occurred within 20 years from the date of the will, and, "All men think all men mortal, but themselves." It is also coupled with the provision for her dying after him leaving issue, and her dying after him leaving only grandchildren, or leaving children and the issue of deceased children, was an event which he must have considered as not improbable. The other clause to be particularly considered is that creating the ultimate remainder in favor of her surviving issue equally, in the absence of an instrument of appointment. An equal distribution, however, is as natural a provision in the case of grandchildren as of children, and this clause is fully consistent with an intent to use the word "issue" in its primary and usual sense, whether it be construed as requiring a distribution per capita or per stirpes. See Raymond v. Hillhouse, 45 Conn. 467, 29 Am. Rep. 688; Heath v. Bracroft, 49 Conn. 220; Soper v. Brown, 136 N. Y. 244, 32 N. E. 768, 32 Am. St. Rep. 731.

The general intent of the testator is plain. It was to secure the whole of this fund to Caroline Bartlett, and those of her descendants who might survive her. Had she died leaving as such two grandchildren, instead of two daughters, it cannot reasonably be supposed that the testator would have wished to divert the fund in part to their father, and the balance to his own heirs at law. Those heirs were their uncle and their mother. Such a division, if she had died insolvent, might have left them penniless, and in any event would have excluded them from any direct benefit as purchasers under the will. It was suggested at the bar that a will providing for future contingencies might properly be differently construed according to what in fact might be the event. On the contrary, the only endeavor of the court must be to ascertain the testator's intention from the language which he used, uninfluenced by any desire to protect interests which, as things turned out, he may, under the rules of law, have left unprotected. Jackson v. Alsop, 67 Conn. 249, 34 Atl. 1106. The event of a contingency may determine that a bequest shall take effect, although in another event a different disposition of the property was, under the terms of the will, to have been made, which would have been contrary to law and void. Thresher's Appeal, 74 Conn. 40, 49 Atl. 861. Such events may thus affect the operation of the will, but never its construction. White v. Allen, 76 Conn. 185, 189, 56 Atl. 519.

As, then, the word "issue" in Mr. Slater's will must receive its primary and usual meaning, it follows that, under the statute of perpetuities in force when it was made and at the death of the testator, the gift in remainder to the issue of Mrs. Sears, in the absence of an instrument exercising her power of appointment, was void. "Issue" is not equivalent to "immediate issue"; and "immediate issue," by the settled construction of that statute, meant only children. Tingier v. Chamberlin, 71 Conn. 466, 42 Atl. 718. The invalidity of this provision for the issue of Mrs. Sears did not affect the validity of her life interest under the trust; that being clearly a separable part of the testator's scheme of disposition. Andrews v. Rice, 53 Conn. 566, 5 Atl. 823. Nor did it destroy her power of appointment, provided it should be exercised with due regard to the prohibitions of the statute. The appointment could only be by an act done during her life, and taking effect upon her death. The time for making it was therefore not too remote under the common-law rule against perpetuities. A power which cannot be exercised, except at a time within the limits of that rule, is not invalid because the instrument creating it purports to authorize, not only an appointment which would be good under that rule, but one that would be void under that rule. Gray on Perpetuities (2d Ed.) pp. 376, 399.

Every testamentary power of appointment by will, in favor of the issue of a certain person, would on its face appear to authorize its exercise in favor of the...