Callahan v. Peltier

• Decision Date: 05 February 1936
• Court: Connecticut Supreme Court
• Parties: CALLAHAN v. PELTIER et al.

183 A. 400

121 Conn. 106

CALLAHAN v. PELTIER et al.

Supreme Court of Errors of Connecticut.

February 5, 1936

Case Reserved from Superior Court, New London County; Earnest A Simpson, Judge.

Action for construction of will by Bertha H. Peltier Callahan trustee under will of Marie L. P. Fournier, against Almas Pierre Pettier and others, brought to the Superior Court and by agreement of the parties reserved by that court for consideration and advice of Supreme Court of Errors.

Judgment in accordance with opinion.

Arthur T. Keefe, of New London, for plaintiff.

Thomas E. Troland, of New London, for Almas Pierre Peltier and others.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN JJ.

HINMAN, Judge.

The facts stipulated for the purposes of this reservation include the following: The will of Marie L. P. Fournier, late of New London, after making various specific devises and bequests in paragraph 12, gave, devised, and bequeathed the residue of her property to her brother, Oscar E. Peltier, and her sister, Bertha H. Peltier Callahan, jointly, in trust, they to receive all income therefrom, share and share alike, during the term of the trust. The next paragraph, which is the one involved in this reservation, provided as follows: " Said Trust created under Article 12th to cease and terminate upon the death of my brother Oscar E. Peltier. Then and at that time, to be distributed as follows; viz: I give, devise and bequeath the rest and residue; Five Thousand Dollars or the equivalent thereof to my brother Almas Pierre Peltier, if he be living. One Thousand Dollars or the equivalent thereof to Almas Pierre Peltier, Jr., if he be living. Six Thousand Dollars or the equivalent thereof to my niece Reina Demers Chagnon, if she be living, otherwise her portion (Reina Demers Chagnon) to be apportioned between all her children then living. The balance and remainder, I give, devise and bequeath absolutely to my sister Bertha H. Peltier Callahan and her son Edward H. Callahan, Jr., share and share alike, or the survivor. In the event that neither Bertha H. Peltier Callahan nor Edward H. Callahan Jr. should survive my brother Oscar E. Peltier; Then I give, devise and bequeath the portion devised and bequeathed under section 13 to Bertha H. Peltier Callahan and Edward H. Callahan, Jr., as follows; one third to Retina D. Chagnon, if she be then living, otherwise to her heirs, one third to Almas Pierre Peltier, one third to Almas Pierre Peltier, Jr. If either of the last two mentioned beneficiaries should not be living at that time, then I give, devise and bequeath the portion devised to each of them, to my niece Reina D. Chagnon and to her heirs."

The will was executed February 13, 1929, and the testatrix died on July 25, 1931. The will was admitted to probate, the executors therein named were confirmed by the court of probate and duly qualified, and on December 22, 1932, the final account of the executors was accepted and the persons named in the will as trustees qualified and acted as such until May 1, 1934, on which date Oscar E. Peltier died, and under the terms of the will the trust terminated. The remainder of the principal of the trust consists of two parcels of land and buildings thereon in New London, having an inventory value of $21,000 and $8,000, respectively, and a mortgage, due February 25, 1944, on real estate in New London, for $32,000. One of the pieces of real estate is subject to a mortgage for $4,000, which was authorized by the court of probate to provide funds for the payment of debts and administration expenses of the estate. All of the primary beneficiaries under paragraph thirteenth of the will are now living. The questions upon which our advice is desired are stated in connection with the discussion of each, respectively.

The first and large question is: " What is the meaning and proper construction to be given to the language $5,000 or the equivalent thereof'; '$1,000 or the equivalent thereof'; '$6,000 or the equivalent thereof' as used in Paragraph 13 of the will?" Almas Pierre Peltier, Almas Pierre Peltier, Jr., and Reina Demers Chagnon claim that these provisions are to be construed to require that payment be made to them, if not in cash, " in something having the character of dollars," of value equal to that sum in dollars and which can readily and presently be converted into that sum in cash. The remaindermen contend that payment may be made in property, of value equal to the specified sums, which may consist of an undivided interest in real property of the estate. The principle is too familiar to require supporting citations that in testamentary construction regard is to be had, not only to the words directly under scrutiny, but also to the context created by other provisions of the will, and to the surrounding circumstances. Broadly, " equivalent" means " equal in value, worth, force, or significance." Webster's New International Dictionary (2d Ed.); Kelley v. Clark, 23 Idaho, 1, 14, 129 P. 921, 925, Ann.Cas.1914C, 665; McLean v. Moran, 38 Mont. 298, 99 P. 836. However, the significance to be attached to the term in each instance depends somewhat upon the connection in and purpose for which it is used.

In the cases which have involved a construction of it, the subject-matter occasioning its use has had an effect upon the meaning and effect ascribed to the word as there employed. Kellogg v. Muller, 68 Tex. 182, 184, 4 S.W. 361, 362, involved an authorization to sell goods " converting the same into cash or its equivalents," and it was held appropriately to the nature of the transaction that an equivalent for cash " must be something commercially as good" or " that could readily be converted into cash at a fixed price." So a note calling for the payment of a stated sum " in gold or its equivalent" was held to require, for its discharge, " something having the character of dollars." Holt v. Given & Co., 43 Ala. 612, 616; Ogden v. Slade, 1 Tex. 13, 14. In Robinson v. Noble's Administrators, 33 U.S. (8 Pet.) 181, 199, 8 L.Ed. 910, 917, it was held that, under an agreement that payment for certain freight charges was to be in the paper of a specified company or its equivalent, the amount recoverable was not the full amount, in specie, of the paper which had greatly depreciated, but only the specie value of the paper at the time payment should have been made. Atlantic Christian College v. Hines, 198 N.C. 622, 626, 152 S.E. 797, 799, involved a subscription to an endowment fund conditioned upon other contributions of a stated amount in " cash, or in securities equivalent to cash." In Security & Bond Deposit Co. v. State ex rel. Seney, 105 Ohio St. 113, 120, 136 N.E. 891, receiving deposits of Liberty bonds was held to bring the appellant within the statutory definition of a " bank" as including any corporation receiving " money, or its equivalent," on deposit as a business. In McLean v. Moran, supra, in construing a statute, personal service on a nonresident defendant was held the equivalent-" of equal worth" -of service by publication and mailing.

Here also, the circumstances and the other provisions of the will may be regarded as helpfully significant. In it the testatrix " gives, devises and bequeaths" several specific pieces of real estate and certain stocks and bonds; also " gives and bequeaths" several small legacies which clearly are purely pecuniary. It thus...