Bridgeport-City Trust Co. v. Buchtenkirk

Decision Date25 June 1956
Citation124 A.2d 231,143 Conn. 531
CourtConnecticut Supreme Court
PartiesTheTRUST COMPANY, Administrator c/t/a and Trustee (ESTATE of Andrew M. COOPER) v. Elizabeth J. BUCHTENKIRK et al. Supreme Court of Errors of Connecticut

Johnson Stoddard, Bridgeport, with whom, on the brief, was Alvin C. Breul, Jr., Bridgeport, for appellant (defendant Margaret J. Haentze).

Norwick R. G. Goodspeed, Bridgeport, with whom, on the brief, was J. Kenneth Bradley, Bridgeport, for appellants-appellees (named defendant et al.).

John F. McGowan, Bridgeport, for appllees (defendants Samuel S. Lyons et al.).

Albert L. Coles, Bridgeport, for appellees (defendants Alma S. Lyons et al.).

W. Bradley Morehouse, Bridgeport, appeared for plaintiff.

Before INGLIS, C. J., O'SULLIVAN, WYNNE and DALY, JJ., and ALCORN, Superior Court Judge.

O'SULLIVAN, Associate Justice.

Andrew M. Cooper, a resident of Bridgeport, died on July 21, 1926, at the age of fifty-four, leaving no issue. His widow, Sara, died on November 3, 1952. On January, 11, 1924, Cooper had executed a will which was admitted to probate on July 28, 1926. The plaintiff, as administrator c. t. a. and trustee, instituted this action to obtain a construction of article third of the will. From the judgment rendered in answering eight questions submitted to the court, 1 two separate appeals have been prosecuted by different defendants. We first consider the one taken by Margaret J. Haentze, the adopted daughter of B. Franklin Jarrett, deceased, and Blanche G. Jarrett, also deceased. Margaret attacks the answer to question (a). By that answer the court determined that she is not entitled to take her adoptive father's share as his 'lineal descendant.'

Under article third of his will, Cooper set up a residuary trust for the benefit of his widow, and others, as long as she lived. He further provided that upon her death the net income which would be available after paying certain annuities should be given 'to such of the following named persons as shall be living and to the lineal descendants per stirpes of such of them as shall be dead, in the following named proportions * * *.' He first listed eight persons by name, to each of whom he gave a one-ninth part of the net income. Among them was B. Franklin Jarrett. The testator then named five others who, as a group, were to receive a one-ninth part. These payments were to continue until the death of the survivor Mary A. Cooper, his sister, and Elizabeth J. Forbus (now Elizabeth Buchtenkirk), his wife's niece, when the trust was to terminate. As to the one-ninth part of the income given to B. Franklin Jarrett, the will provided: '[I]n case of the death of my wife's said brother, B. Franklin Jarrett, prior to the death of his wife, Blanche Grant Jarrett, the portion designed for him shall be paid to her during life and thereafter to his lineal descendants, per stirpes, as hereinbefore provided * * *.' B. Franklin Jarrett died on December 4, 1946, and his wife, Blanche, on October 23, 1953.

In their ordinary and primary meaning, the words 'lineal descendants' connote relationship by blood, and they will be so construed unless it clearly appears that the testator used them in a more extended sense. Wildman's Appeal, 111 Conn. 683, 686, 151 A. 265. The question, then, is whether the language of the will, read in the light of all the circumstances surrounding the testator, at the time of its execution, clearly demonstrates an intention that the words 'lineal descendants' should include adopted children. Morgan v. Keefe, 135 Conn. 254, 257, 63 A.2d 148; Ansonia National Bank v. Kunkel, 105 Conn. 744, 750, 136 A. 588.

To answer this question, we first turn to the finding, which cannot be corrected and which discloses the following facts: After her father's death in 1914, Margaret J. Haentze, then less than five years old, went to live with Mr. and Mrs. B. Franklin Jarrett, in Philadelphia, who thereafter treated her as their own child. Jarrett was a brother of the testator's wife, and Mrs. Jarrett was the sister of Margaret's mother, Lida G. Ilko. Between 1915 and 1920, the testator and his wife made many visits to the home of the latter's mother, who lived near Philadelphia. On these occasions the Coopers also visited the Jarretts. Margaret was present at these times, and the Coopers treated her in a friendly and kindly fashion. During these visits, Margaret referred to them as 'Uncle Andrew' and 'Aunt Sara.' Over the years, it was a Christmas practice of the Coopers to send gifts to the Jarretts, and they always included a gift for Margaret. Following the death of Mrs. Cooper's mother in 1920, the Jarretts and Margaret made infrequent visits to the Coopers in Connecticut. During the summer of 1921, while the Coopers were on an extended trip to Europe, they allowed the Jarretts and Margaret to occupy their cottage at Fairfield Beach. In the summer of 1922, the Jarretts and Margaret spent a week with the Coopers at the same cottage. On this occasion, Cooper introduced Margaret as his niece to his neighbors. Margaret was adopted by the Jarretts on October 6, 1925.

Cooper did not know that the Jarretts proposed to adopt Margaret until several months after he had executed his will. Either late in 1924 or early in 1925, the matter of adoption was discussed between the Jarretts and Mrs. Ilko, Margaret's mother, in Cooper's presence. Cooper told Mrs. Ilko that she was doing a wonderful thing for the Jarretts and that Margaret would be well cared for by them. Cooper was a careful, meticulous businessman. Reticent about his personal affairs, he was not prone to discuss them even with members of his own family. He was very precise in the handling of his business matters. In his will, he made specific provision for Mr. and Mrs. Jarrett, for the widow of his brother, Thomas R. Cooper, and for Flora A. Lyons and Harriet L. Shumard, step-children of his sister Ann. He also made specific provision for four beneficiaries who were not related by blood to himself or his wife. At no time did he say to anyone that Margaret's adoption would make her a beneficiary under his will. On the contrary, shortly before he died, as set forth in a paragraph of the finding, his wife said to him that it was too bad no provision had been made for Margaret in his will. He stated, in reply, that he had already given in to his wife by including Mrs. Jarrett as a legatee and that he would not do any more. The facts incorporated in this paragraph of the finding are hotly challenged by Margaret, although she concedes that evidence to support them was introduced at the trial. The reason for the challenge and the effort to have the paragraph stricken is obvious. 'If actually such [facts are] found,' runs the brief prepared by her counsel, 'appellant's appeal is doomed, and no need exists for construction so far as Margaret is concerned. * * * Clearly [the] paragraph shows an intention not to include Margaret and * * * is practically tantamount to a determination of her claim to take as a 'lineal descendant." We are in no position to strike the paragraph for any reason advanced by Margaret. The credibility of witnesses is a matter for the trier. Ball v. Town of Branford, 142 Conn. 13, 15, 110 A.2d 459.

Weighing the testamentary language in the light of the circumstances surrounding Cooper at the execution of the will, as those circumstances appear from the facts narrated above, we can find no clear indication that he used the words 'lineal descendants' in such an extensive sense as to include 'adopted children.' Indeed, practically everything indicates the contrary. It is true that the testator was apparently not concerned with blood lines and displayed no marked preference for his own blood relatives. While that is a factor to consider, it is not controlling. The same may be said of any knowledge he may have had concerning the effect of adoption upon the right of an adopted person to inherit. Wildman's Appeal, 111 Conn. 683, 687, 151 A. 265. Without laboring the matter further, we are convinced that the testator used the words 'lineal descendants' in their ordinary and primary meaning. The court was correct in answering question (a) in the negative.

We now turn to the appeal taken by Elizabeth J. Buchtenkirk (formerly Elizabeth J. Forbus) and five other defendants. 2 They claim to be aggrieved by the answers given by the court to questions (b) to (f), inclusive. Those questions relate to the part of article third which disposes, after the death of the testator's widow, Sara, of the income of the trust until the death of the survivor of the testator's sister, Mary A. Cooper (now deceased), and Elizabeth J. Buchtenkirk, Sara's niece. After setting up three paragraphs, numbered (1), (2) and (3), respectively, in which he provided for payments from the net income to various persons, the testator directed his trustees '(4) to pay in quarter-yearly payments all income not otherwise disposed of under (1), (2) and (3) next above to such of the following named persons as shall be living and to the lineal descendants per stirpes of such of them as shall be dead, in the following named proportions, viz: one part each to my sister, Mary A. Cooper--my wife's niece, Elizabeth Jarrett Forbus-- my niece, Janet S. Cooper--my brother's widow, Carrie R. Cooper--my niece, Helen Cooper Delany--my wife's nephew, Joseph Jarrett Knowles--my wife's sister, Emma Jarrett Knowles--my wife's brother, B. Franklin Jarrett, and one part divided equally between my nieces, Flora A. Lyons and Harriet Lyons Shumard, and my...

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