Bronson v. Pinney

• Decision Date: 13 July 1943
• Parties: BRONSON v. PINNEY et al.
• Court: Connecticut Supreme Court

130 Conn. 262

33 A.2d 322

BRONSON

v.PINNEY et al.

Supreme Court of Errors of Connecticut.

July 13, 1943.

Appeal from Superior Court, New Haven County; McLaughlin, Judge.

Action by Clarence W. Bronson, as trustee under the will of Frank S. Platt, deceased, against M. Edith Pinney and others for construction of the will and a declaratory judgment declaring the identity of remaindermen created by will and other relief, brought to the superior court and tried to the court. From the judgment, defendants Howard C. Platt, executor, and others, and defendant Morris B. Clark, administrator, and others appeal.

Error in part, and case remanded with directions.

George E. Beers and William L. Beers, both of New Haven, for appellants (defendants Howard C. Platt, executor, et al.).

Anson T. McCook, of Hartford, for appellants (defendants Morris B. Clark, administrator, et al.).

Mary E. Manchester and Crenna Sellers, both of New Haven, for appellees (defendants Sara M. Squire et al.).

Charles M. Lyman, of New Haven, for appellees (defendants Horace B. Squire et al.).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

MALTBIE, Chief Justice.

This action was brought to secure a construction of certain provisions in the will of Frank S. Platt, who died, a resident of New Haven, in 1934. The case was submitted to the trial court upon the admitted allegations of the pleadings, and from its decision several of the parties have appealed.

In the fourth article of the will, the testator gave a legacy of $5000 to each of ten nephews and nieces, who are named, and to the children of another named legatee, Bertha B. Squire, the children also being named. We are primarily concerned with four of these legacies: one to his niece Mrs. Mabel Pinney Cannon, one to his niece Mabel Clark, one to his nephew Howard Platt, and the fourth to his niece Gladys Platt Pendleton. In the sixth article he gave the residue of his estate to trustees ‘to pay the net income in semiannual payments to the legatees named in the fourth item of this will in equal portions (with one exception) and if, after the date of this will and at any time before the termination of this trust, any one of the aforesaid legatees dies leaving issue then the portion which the parent would have received had he lived shall be paid to the issue of such parent. This trust shall terminate ten (10) years after the probate of my will. Upon the termination of the trust the trust fund shall be divided equally (with one exception) between the legatees named in the fourth item of my will and the issue of such legatees as may die after the date of my will and prior to the final distribution. The issue of any legatee before named in said item four shall take the parent share per stirpes. I make one apparent exception to the rule of equality in income and distribution. In item four (f) I give to the four Squire children collectively the share of their parent. These four children collectively take one portion of income and principal.’

In a codicil he revoked the legacy given to Mrs. Cannon, and in lieu of it gave the same sum to the trustees named in the will, as a spenthrift trust for her, with this provision: ‘I further direct that the payment of principal, if any, due to the said Mrs. Mabel Pinney Cannon under the sixth item of my will shall be added to the principal of the trust estate in this item created and become a part and parcel of it. If at the death of the said Mabel Pinney Cannon any portion of the principal of this trust fund has not been expended, then and in that event, I give and bequeath the unexpended portion to the issue of the said Mabel Pinney Cannon share and share alike Per Stirpes.’ He later made a second codicil as follows: ‘I modify paragraph sixth of my will as follows: Howard Platt, of San Francisco, and Gladys Platt Pendleton, of San Francisco, and their respective issue shall take nothing by virtue of said paragraph. It is my wish that they each receive five thousand ($5000) by virtue of paragraph fourth (j) and (k) and that they receive no more. If either the said Howard Platt or the said Gladys Platt Pendleton die before me then the issue of the one dying shall take the parent's share per stirpes. I have reduced the gifts of the two legatees aforesaid because I believe they are relatively more prosperous than some of my other legatees and therefore, in less need of money.’

Mabel Clank survived the testator but has died without issue, and the administrator of her estate is one of the parties to this action. One of the questions presented was as to the disposition to be made of the share of the residue given to her. The other questions are as to the rights of the parties under the sixth article, as regards the shares given in it to Howard Platt and Mrs. Pendleton. Howard Platt survived the testator but has since died, leaving one child. Mrs. Pendleton is still living.

The will contains no express disposition of the gifts made in the sixth article in the event that any legatee should die without issue, as did Mabel Clark. The direction that ‘upon the termination of the trust’ the fund ‘shall be divided equally (with one exception)’ among the legatees is insufficient to import that any legatee must survive a termination of the trust in order to become entitled to a share of it. We have never recognized in this state the rule that where there is no express gift, but merely a direction to pay or divide at a future time, the gift will not vest until that time. White v. Smith, 87 Conn. 663, 668, 89 A. 272, L.R.A.1917D, 596; New Britain Trust Co. v. Stanley, 128 Conn. 386, 393, 23 A.2d 142. In Mead v. Close, 115 Conn. 443, 445, 161 A. 799, we said: ‘The words ‘to be divided’ among my brothers, or their children, import a gift to these beneficiaries, and in themselves, have no significance as postponing the vesting of their rights. * * * This is also true of the provision that such division shall be made ‘upon the death’ of the life tenant.' Any claim that Mabel Clark's rights were contingent upon her being alive at the termination of the trust is completely rebutted by the fact that without question she became entitled at the death of the testator to receive a share of the income of the trust; in both the bequest of the income and of the principal at the termination of the trust, the testator made the same provisions, gifts to the legatees named in the fourth article and to the issue of any who died; and it is not reasonable to assume that he distinguished between the gifts of income and principal, intending that the former should vest at his death and the latter only upon the termination of the trust. If Mabel Clark had survived the termination of the trust, it was clearly the intent of the testator to vest in her absolute title to her share in the fund; and the provisions of the will can mean no less an estate because she died before that time. Duncan v. Higgins, 129 Conn. 136, 145, 26 A.2d 849.

She took an interest in both income and principal which vested at the death of the testator. This was defeasible in the event that she died leaving issue; but nowhere in the will do we find any intention expressed that her death without issue would in itself terminate the estate given to her. In Austin v. Bristol, 40 Conn. 120, 136, 16 Am.Rep. 23, we quoted the statement of the Master of the Rolls in Harrison v. Foreman, 5 Ves. 207, 210, 31 Eng.Rep.R. 549: ‘There is a vested interest, and the contingency upon which it is to be divested has never happened. The vested interest therefore remains as if that contingency had never been annexed to it.’ This quotation was repeated and the principle applied in Mahoney v. Mahoney, 98 Conn. 525, 535, 120 A. 342. We have also applied it in instances where an absolute estate was defeasible upon a condition which has failed, Congregational Home Missionary Society v. Thames Bank & Trust Co., 127 Conn. 1, 13, 14 A.2d 626; Duncan v. Higgins, supra; and in the latter case we said (page 145 of 129 Conn., page 853 of 26 A.2d): ‘* * * our law is settled that where there is an absolute gift to one person, with a provision that in the event of his death before a certain time another should take by executory devise or bequest, and the latter gift fails the absolute interest in the first donee remains unaffected and upon his death passes to those who succeed him by right of inheritance.’ In Thompson v. Martin, 281 Mass. 41, 183 N.E. 51, the testator directed that the income of a trust fund should be divided among his nephews and nieces, naming them, and at termination of the trust that the principal should be divided among these nephews and nieces, but, if one were not then living, the share he would have taken was to be paid to his issue if any, and if none, it was to become a part of the trust fund; the court, pointing out that no disposition was made of income where a legatee died before the termination of the trust, and holding that the bequest was not one to a class, decided that each legatee took a vested interest in the income at the death of the testator which upon the death of the legatee before the termination of the trust would pass to his personal representative. See 1 Scott, Trusts, p. 719. From these precedents it would follow that upon the death of Mable Clark without issue her share in the residue, both of income and principal, became a part of her estate.

Certain of the parties claim, however, that there was a right by survivorship attached to each gift in the sixth article, by virtue of which, upon the death of any of the legatees, the others would share the portion given to him or her. It is not claimed before us by any party that the gift in the sixth article was a class gift, and indeed such a claim would be without foundation. Shannon v. Eno, 120 Conn. 77, 93, 179 A. 479; Union & New Haven Trust Co. v. Sellek, 128 Conn. 566, 569, 24 A.2d 485, 140 A.L.R. 837. Nor did the provision create...