Belfield v. Booth

• Decision Date: 09 September 1893
• Citation: 63 Conn. 299,27 A. 585
• Court: Connecticut Supreme Court
• Parties: BELFIELD et al. v. BOOTH.

27 A. 585

63 Conn. 299

BELFIELD et al.

v. BOOTH.

Supreme Court of Errors of Connecticut.

Sept. 9, 1893.

Case reserved from superior court, Fairfield county.

Suit by Susan B. Belfield, administratrix d. b n. of the estate of Elon Booth, deceased, and others, against John W. Booth and Charles Henry Peck, to construe a will.

The executor and trustee of the residuary estate, named in the will, had been removed from the office of executor by the court of probate. John W. Booth, as nephew and one of the heirs of the testator, and the trustee named in the will, were the sole defendants. Among the plaintiffs were Annis Booth, the widow of Orville Booth, suing individually, and five of her grandchildren, who were minors, suing by her as their next friend. Two of them were children of John W. Booth, and the others were children of others of the plaintiffs. Upon the argument of the cause, early during the term, all the plaintiffs were represented by the same counsel, who claimed, as did also the counsel for John W. Booth, that the residuary provision in the will for the grandchildren of Orville Booth was void. The court thereupon stated that it would be proper to have the minor grandchildren represented by some next friend other than Annis Booth, whose counsel were attacking the validity of the will; and the cause was remanded, with directions for the substitution of some more suitable person. This substitution was made, and the cause was reargued at a later day during the term all parties being represented. The clauses in the will which were the subject of consideration are given in the opinion of the court.

D. Davenport and W. H. O'Hara, for plaintiff.

G. Stoddard, for defendant J. W. Booth. S. Fessenden and S. Tweedy, for trustee, C. H. Peck.

BALDWIN, J. The will of Elon Booth, after providing for certain bequests and charges, proceeds as follows: "After the above bequests have been complied with, and the executor has settled with the judge of probate, my will is that the remainder of my estate be paid over to the trustee hereinafter named. I hereby appoint Charles Henry Peck trustee of my estate for the following fourteen years from the time he receives said funds from the executor, and to be disposed of as follows: First, that the said trustee pays yearly to my sister, Delana Brinsmade, of the town of Trumbull, the sum of six hundred dollars, for the period of fourteen years." Six other annuities, to the widow and children of Orville Booth, during the same period, are then given; the seven amounting, in all, to $2,000 a year. Then follow these provisions: "The above sums to be paid yearly from the income of my estate and, should that be insufficient, then each one to be paid pro rata from said income, and from no other source if any or all of the above-named persons are living at the time of the said trustee receiving said funds, and should not live the full term of fourteen years, I direct said trustee to pay to such persons' estate the amount due them up to the time of their death, and such one's portion ceases, and is vested with the remaining income yearly in the general fund. All notes which I may hold against Levi B. Booth at the time of my decease, my will is that by his paying yearly to the trustee the interest on said notes for fourteen years from the settlement of my estate by the executor, I then direct said trustee to destroy said notes in his presence, which releases him from any future liability on said notes: provided, however, if during the period of fourteen years the said Levi B. Booth refuses to pay said interest, or dies, then I direct the said trustee to collect the principal and interest, if any due, and invest the same in the general fund. At the expiration of fourteen years, I direct my trustee to cause the remainder of my estate to be divided among the grandchildren of my deceased brother, Orville Booth, and the adopted daughter of my sister, Delana Brinsmade, share and share alike; that is to say, if there should be three living grandchildren of said Orville Booth, the residue of said estate shall be divided into four shares, and, if more or less in the same proportion, said adopted daughter to have no more than any one of the grandchildren. In the event of the death of said adopted daughter previous to the expiration of fourteen years, I will, devise, and bequeath the share she would take if living to the living grandchildren of my deceased brother, Orville Booth, share and share alike." The adopted daughter of Delana Booth died soon after the decease of the testator.

It is claimed in behalf of the heirs at law that both the trust to support the annuities and the residuary bequests are in contravention of the common-law ride against perpetuities. The testator died in 1890, shortly after the date of his will, leaving an estate, consisting mainly of personal property of the value of over $150,000, and yielding an annual income of $6,000. The executor has appealed from the decree removing him from office. He has not settled his administration account, and the date of the final settlement of the estate is uncertain, on account of the pendency of that appeal.

The testator intended that the adopted daughter of his sister, Delana, and the grandchildren of his deceased brother, Orville, should ultimately come into the possession and enjoyment of the bulk of his property. His sister was to receive only a small annuity, and the widow and children of Orville were treated in a similar manner. Of the seven grandchildren of Orville, five were minors, the youngest being six years old, at the date of the will. There are no direct words of grant or conveyance to the residuary legatees. Upon the settlement of the executor's administration account, the residuary estate is to be "paid over to the trustee," and, after a certain time, he is to cause it "to be divided" among the legatees. There are no other words of conveyance to the trustee, but his appointment is couched in these words: "I hereby appoint Charles Henry Peck trustee of my estate for the following fourteen years from the time he receives said funds from the executors." These provisions, if valid, are sufficient to give a legal estate to the trustee named. Donalds v. Plumb, 8 Conn. 447, 452. Whether such estate became vested in him, of right, upon the decease of the testator, or his title would commence at the time when he was to receive possession, it is not now important to inquire. The material thing is to ascertain whether the time when the testator intended that the equitable estate should vest in his residuary legatees has been postponed beyond the limit prescribed by law. These legatees were a designated individual and a class already in being,—the grandchildren of his deceased brother. The residuary clause directs the division of the estate among them "at the expiration of fourteen years," and provides for the contingency of the death of his sister's adopted daughter "previous to the expiration of fourteen years." Taken by itself, this clause would require the division to be made 14 years from the time when the will speaks,—that is, from the death of the testator; but the whole instrument sufficiently manifests a general intent that the 14-year period should run from the date of the settlement of the administration account. Prior to that date the funds are to remain in the hands of the executor, who is the same person as the trustee; and it is claimed by the heirs to be possible that the estate will not be finally settled in the court of probate until more than seven years, nor the final division by the trustee made until more than twenty-one years, from the decease of the testator. If this be so, and if no beneficial interest were previously vested, such a postponement would defeat the general scheme of the will, since the common-law rule against perpetuities remains in full force in this state. As the individuals to be benefited by the division were all ascertained and in being at the death of the testator, except so far as subsequent deaths might lessen, or subsequent births increase, the number of his brother's grandchildren, and as one, at least of the parents of each after-born grandchild must be a person in being at the testator's death, the natural construction of the will is that which makes it then vest a title in these beneficiaries, subject to be defeated as to any of them by death, or abridged by the birth of other grandchildren before the time for the final division. Dale v. White, 33 Conn. 294, 296; Jones' Appeal, 48 Conn. 60, 67. "The law will not favor a construction which suspends the title or holds it in abeyance." Farnam v. Farnam, 53 Conn. 261, 279, 2 Atl. Rep. 325, and 5 Atl. Rep. 682. It is true there are here no words of present gift to the residuary legatees, but neither are there words of present gift to any one else. Unless the beneficial estate vested in them at the testator's decease, it vested in no one. The postponement of the time when they were to come into possession, was made solely for the benefit of their...