Brunton v. International Trust Co.

• Decision Date: 05 November 1945
• Docket Number: 15442.
• Citation: 164 P.2d 472,114 Colo. 298
• Parties: BRUNTON et al. v. INTERNATIONAL TRUST CO. et al.
• Court: Colorado Supreme Court

164 P.2d 472

114 Colo. 298

BRUNTON et al. v. INTERNATIONAL TRUST CO. et al.

No. 15442.

Supreme Court of Colorado, en Banc.

November 5, 1945

Rehearing Denied Dec. 17, 1945.

Error to District Court, City and County of Denver; Henry S Lindsley, Judge.

Suit by the International Trust Company, as trustee, against Jessie T. Brunton and others for the construction of a trust wherein the United States National Bank of Denver as trustee filed a complaint as intervener asking for a simultaneous interpretation of another trust agreement. From the judgment Jessie T. Brunton and others appeal.

Judgment affirmed in part and reversed in part.

Max P. Zall, of Denver, for Jessie T. Brunton, Virginia Brunton Larsson, Marion Brunton Barker, and Dickinson Brunton Barker, plaintiffs in error.

Max D. Melville, Norma L. Comstock and Norman H. Comstock, all of Denver, for Barbara Brunton Jacques, David William Brunton, II, and Dean Brunton Jacques, a minor, plaintiffs in error.

Montgomery Dorsey, Hughes & Dorsey, and Thomas Keely, all of Denver, for International Trust Co. defendant in error.

Dines, Dines & Holme and Milton J. Keegan, all of Denver, for United States Nat. Bank of Denver, as trustee, defendant in error.

Pershing, Bosworth, Dick & Dawson and Samuel S. Sherman, Jr., all of Denver, for Carville Joseph Brunton, defendant in error.

JACKSON Justice.

This case involves the construction of two trust agreements, in one of which the International Trust Company is trustee, the United States National Bank appearing in the other in that capacity. Two distinct, and wholly unrelated, questions are involved and, except for the circumstances hereinafter noted, they might have been presented in separate cases, even as we have disposed of two other questions involving these trusts in separate proceedings. Brunton v. International Trust Co., 90 Colo. 48, 6 P.2d 460, and United States National Bank of Denver, Trustee, v. Brunton, 112 Colo. 442, 150 P.2d 297.

The first question presented to the trial court involves solely the trust in which the International Trust Company appears as trustee. The second point involves the right of Carville Joseph Brunton, adopted son of John D. Brunton, to take under either trust. Some of the parties and their counsel, who appear on opposite sides on one point, join in presenting one side of the argument on the other point.

Although David W. Brunton is the donor in the International Trust Company agreement, dated July 1, 1923, and Katharine K. Brunton is the donor in the United States National Bank agreement, dated August 29, 1927, it is conceded that it was the assets of the former that constituted the bulk of the corpus of both trusts as well as that of still another trust set up in New York City with the National Bank of Commerce of New York as trustee, under date of September 1, 1927 (which the Bruntons referred to as 'Brunton Trust No. 2). The value of the original corpus of each of the three trusts exceeded $400,000.

The two Colorado trusts, very similar in their main outline, were created for a period to cover the lives of various members of the Brunton family and twenty-one years after the death of the last survivor thereof. Trust No. 1 (International) included the lives of the donor, David William, in the first generation, three of his four children (excluding John D.) in the second generation, and seven grandchildren in the third generation. Trust No. 3 (United States National) covered the lives of Katharine K., the donor, and her husband, David William, in the first generation, all four of their children in the second generation, and six grandchildren in the third generation (one grandchild having died subsequent to the execution of Trust No. 1 and prior to the execution of Trust No. 3). All six members of the first two generations are now deceased.

The first point involved in the present proceeding arose when, after the death of Harold J. Brunton, who was one of the sons of David and Katharine, the International Trust Company, as trustee under trust No. 1, alleging that there was a conflict as to the present disposition of the income which Harold J. Brunton had formerly been receiving during his lifetime, asked for an interpretation of the provisions of the trust agreement bearing on this question, the pertinent paragraphs of which read as follows:

'Article IV. Section 2(a). During the natural life of Katharine K. Brunton, the wife of David William Brunton, forty per cent (40%) of the net income arising from the trust shall be paid by the trustee in the manner hereinbelow directed, to the said Katharine K. Brunton.

'(b). Upon the death of the said Katharine K. Brunton, the income to which she would have been entitled if living, shall be paid by the trustee to the lines of Frederic K. Brunton, John D. Brunton, Harold J. Brunton and Marion B. Shanklin, respectively, share and share alike, or the survivors or survivor thereof.'

'Section 6(b). Upon the death of the said Harold J. Brunton, the income to which he would have been entitled if living, shall be paid, one-half thereof to his widow, Lillian Brunton (if she and her husband have not separated during his lifetime), dur-her natural life, and the remaining one-half thereof per stirpes, to his lawful issue; or if there be no such issue then living, then to the lines of Frederic K. Brunton, John D. Brunton and Marion B. Shanklin, respectively, share and share alike, or to the survivors or survivor thereof. After the death of the said Lillian Brunton, the share to which she would have been entitled if living, shall be paid per stirpes to the lawful issue of said Harold J. Brunton. If upon the death of said Harold J. Brunton there be no such lawful issue living or, if living, extinction thereof should occur prior to the termination of this trust, such income of the said Harold J. Brunton shall be paid to the lines of Frederic K. Brunton, John D. Brunton and Marion B. Shanklin, respectively, share and share alike, or to the survivors or survivor thereof.'

The Lillian Brunton to whom reference is made in section 6(b), supra, was, at the time of the execution of the trust agreement, the wife of Harold J. Brunton and the mother of all of his children. She subsequently was divorced from him, and both parties have since remarried. She now, as Lillian H. Glessner, disclaims any interest either in this proceeding or under any provisions of the trust. Jessie T. Brunton, Harold J. Brunton's second wife, now asserts the right to take the income as his surviving widow. Other beneficiaries under the trust, and particularly the children of Harold J. Brunton, contest this right.

The trial court found that: 'As to the contention of Jessie T. Brunton, * * * she does not come within the provisions of the International Trust Company trust [known as 'The Brunton Trust'] so as to entitle her to receive during her lifetime one-half of the income which her husband, Harold J. Brunton, was entitled to receive during his lifetime, because, although his widow at the time of his death, the founders of the trust specifically designated Lillian Brunton, who, under the terms of the trust, cannot qualify and therefore said income the Court holds should, from the time of the death of Harold J. Brunton, go to the lawful issue of his line.'

Jessie T. Brunton contends that as the widow of Harold J. Brunton she is entitled to one-half the income which he was receiving during his lifetime, and that the words 'Lillian Brunton' are mere surplusage. After a study of the trust agreement and the cases upon which her counsel rely, we have reached the conclusion that this contention is untenable.

Our impression is that, had the founders of the trust intended that any widow who survived Harold J. Brunton should take, they would have said so, as they did in Brunton Trust No. 3 (the United States National trust) and not referred to any one person by name. The cases upon which counsel relies are of this character, including Williams v. Fundingsland, 75 Colo. 315, 221 P. 1084, 63 A.L.R. 77, where the beneficiary is designated, not by name, but by description or status. We have held in Moore v. Hendley, 97 Colo. 258, at page 261, 48 P.2d 808, under the disclosed facts, that a substituted beneficiary named in two life insurance policies as 'husband' was entitled to the proceeds thereof, as against the claim of the administrator of the estate of deceased insured, although he was not in fact her husband, the latter term being construed to be merely descriptio personae. We know of no case in this jurisdiction, and none elsewhere has been called to our attention, where the reverse situation has happened, i. e., an award made in favor of one suiting the status or description but who was a different person from that designated in the instrument being interpreted or construed. Nor do we believe that the fact that the word 'widow' does not follow, but precedes, the name 'Lillian Brunton,' should change this interpretation or construction, for in the next succeeding sentence (section 6[b]), are the words: 'After the death of the said Lillian Brunton,' further indicating that the gift is personal to her and not applicable to any widow. Another element indicating the personal nature of the gift is the parenthetical clause in the first sentence, immediately following the words 'his widow, Lillian Brunton.' The words within the parenthesis, 'if she and her husband have not separated during his lifetime,' clearly apply to Lillian Brunton and her then husband, Harold J. Brunton (incidentally not to any subsequent husband), because if it applied to any widow, as such, the words within the parenthesis would appear not to make sense.

To treat the words 'Lillian Brunton' as...