Chase Nat. Bank v. Guthrie

• Decision Date: 22 July 1952
• Citation: 139 Conn. 178,90 A.2d 643
• Court: Connecticut Supreme Court
• Parties: CHASE NAT. BANK v. GUTHRIE et al. Supreme Court of Errors of Connecticut

Page 643

90 A.2d 643

139 Conn. 178

CHASE NAT. BANK v. GUTHRIE et al.

Supreme Court of Errors of Connecticut.

July 22, 1952.

Earle W. Smith, Bridgeport, for the named defendant et al.

John V. Donnelly, pro se as guardian ad litem of Ariane L. Yokana et al.

Arthur C. Williams, Bridgeport, appeared for the plaintiff.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ. BALDWIN, Associate Justice.

The plaintiff, as executor and trustee, brought this action seeking a construction of the will of its testator, Nicholas S. Hill, Jr. There are two groups of defendants. One is composed of the grandchildren of the testator. The other includes his great-grandchildren and the unborn issue of his children, all of whom are represented by a guardian ad litem. The case has been reserved for the advice of this court upon certain questions. ¹

Nicholas S. Hill, Jr., died on October 18, 1936, leaving a will dated October 7, 1932, which was admitted to probate. His widow, Florence Acheson Hill, then forty-seven years of age, survived. She died on September 9, 1942. His only children, Isabelle Hill Guthrie, a widow forty years old at the time of her father's death, and Nicholas S. Hill, 3d, then thirty-eight years of age, married and living with his wife, also survived. There were four grandchildren living at the time of the testator's death. Three of these were the children of Mrs. Guthrie, the youngest of whom was a son born September 8, 1925. The other grandchild was the son of Nicholas S. Hill, 3d, born April 22, 1923. No additional grandchild has been born since the execution of the will. There are five great-grandchildren.

The testator made certain specific bequests. He gave $30,000 to his daughter and $5000 to his son, outright. In the fourth article of his will he gave $50,000 to trustees with the provision that the income be paid to his widow for life and that at her death the principal be paid into a trust fund established for his grandchildren in the thirteenth article of the will. In the tenth article he gave $20,000 to trustees, the income therefrom to be paid to his sister for life, and upon her death the principal to be paid in equal shares to his grandchildren 'who may be living at that time, per capita and not per stirpes.' In the twelfth article he gave the residue of his estate to the plaintiff and to his widow, as trustees, and directed that the income be paid to his widow for life. The thirteenth article provided that upon her death the plaintiff, as the surviving trustee, should 'pay the principal of the above trust fund into a trust, in equal shares, per capita and not per stirpes, for the benefit of my grandchildren'; that the plaintiff and the testator's daughter, Mrs. Guthrie, should be trustees of this fund; and that the income should be paid to Mrs. Guthrie, 'to be used in equal shares for the benefit of my grandchildren as may in her judgment be deemed proper.' He further directed 'the surviving executors and trustees or executor and trustee, of this trust to pay the principal of this trust fund to each of my grandchildren, in equal proportion, when the youngest of my grandchildren then living shall have reached the age of twenty-five years.'

We have already held that the gift to the testator's grandchildren was a class gift. Hill v. Birmingham, 131 Conn. 174, 177, 38 A.2d 604; see also Hill v. Wright, 128 Conn. 12, 19, 20 A.2d 388. Such a class would remain open to admit any grandchild born after the execution of the will and before the event occurred or the time arrived for the closing of the class. Webster v. Welton, 53 Conn. 183, 184, 1 A. 633; Jones' Appeal, 48 Conn. 60, 67. The first question posed by the reservation is whether the class is closed, and if so, on what date it closed. The grandchildren claim that the class closed when the testator's widow died on September 9, 1942. If that be so, the distribution should be made as of September 8, 1950, the date when the youngest of the four grandchildren, the son of Mrs. Guthrie, reached twenty-five years of age. The guardian ad litem claims on behalf of the greatgrandchildren and the unborn issue of the testator's children that the class would include any grandchild whenever born. He further alleges that it would not close until the testator's daughter and son were both dead and the youngest living grandchild reached his twenty-fifth birthday, with a possible further extension of nine months if the widow of Nicholas S. Hill, 3d, was enceinte.

The resolution of these claims is to be found by applying certain recognized principles of testamentary interpretation. The cardinal rule to be followed in construing a will is to find and effectuate the intent of the testator. Swole v. Burnham, 111 Conn. 120, 121, 149 A. 229; White v. Smith, 87 Conn. 663, 668, 89 A. 272, L.R.A.1917D, 596; Reaney v. Wall, 134 Conn. 663, 666, 60 A.2d 505; Budington v. Houck, 134 Conn. 72, 76, 54 A.2d 671. In seeking that intent, the court looks first to the will itself. Hoenig v. Lubetkin, 137 Conn. 516, 519, 79 A.2d 278. It examines the words and the language used in the light of the circumstances under which they were written. Union & New Haven Trust Co. v. Ackerman, 114 Conn. 152, 157, 158 A. 224. It studies the will as an entirety. Mitchell v. Reeves, 123 Conn. 549, 556, 196 A. 785, 115 A.L.R. 1114. The quest is to determine the meaning of what the testator said and not to speculate upon what he meant to say. Swole v. Burnham, supra, 111 Conn. 122, 149 A. 229.

The testor's direction in the thirteenth article of his will that, upon the death of his wife, the executor and trustee should pay the principal of the trust fund into a trust, in equal shares, per capita and not per stirpes, for the benefit of his grandchildren, expressed an intent to allocate a portion of the principal to each of his grandchildren individually at the time of the widow's death. The portion so allocated to each could be determined only if the total number of grandchildren who were to participate was definitely known. That number could not be fixed unless the class closed as of that time. Furthermore, this same article directed that the principal of the trust fund be paid to each of the testator's grandchildren, 'in equal proportion, when the youngest of my grandchildren then living shall have reached the age of twenty-five years' (italics supplied). Do the words 'then living' refer to the event of the death of the widow and the establishment of the trust as terminating the period wherein there could be additions to the class of beneficiaries, or do they refer to the time when the youngest living grandchild who might be born to the children of the testator reaches the age of twenty-five years?

The word 'then' as used in a testament may be employed to express a point in time or to designate an event. It is more frequently used in the latter sense. State Street Trust Co. v. Sampson, 228 Mass. 411, 413, 117 N.E. 832; People v. Camp, 286 Ill. 511, 518, 122 N.E. 43; see First National Bank v. Somers, 106 Conn. 267, 275, 137 A. 737; In re Fitzpatrick's Estate, 233 Pa. 33, 35, 81 A. 815. The testator's widow was forty-three years of age when the will was drawn and fortyseven when the testator died. She was only...