Close v. Benham

• Decision Date: 23 December 1921
• Parties: CLOSE v. BENHAM et al.
• Court: Connecticut Supreme Court

115 A. 626

97 Conn. 102

CLOSE v. BENHAM et al.

Supreme Court of Errors of Connecticut.

December 23, 1921

Case Reserved from Superior Court, Fairfield County; John P Kellogg, Judge.

Suit by Frank N. B. Close, trustee, against F. Nelson Benham and others, to determine the validity and construction of the will of Junius N. Benham of Bridgeport, deceased, brought to and reserved, on the facts stated in the complaint, for the advice of this court. Will construed.

David S. Day, of Bridgeport, for defendant Benham.

William H. Comley, Jr., of Bridgeport, for defendant Close.

Edward J. McManus, of Bridgeport, for defendant administrator of estate of Lizzie Benham.

WHEELER, C.J.

Those provisions of the will of Junius N. Benham which we are asked to construe gave two-thirds of his estate in trust to pay the net income therefrom equally to his daughters, Mary B. Close and Lizzie Benham, during their lives. Upon the decease of either, one-half of the two-thirds was given to the issue of the deceased daughter, equally and per stirpes; and, in case the deceased daughter left no issue, this share was given to the testator's next of kin, to be divided among them equally per stirpes. Lizzie Benham died without issue, and the share whose income she had enjoyed vested in the next of kin of the testator.

The first question for our decision is: When did the title to this share vest, at the testator's death, or at the death of the life tenant? The second: Who are the next of kin, the nearest blood relatives, or those entitled to take under the statutory distribution of intestate estates? And the third Is the estate of Lizzie Benham entitled to a one-third part of this share?

1. The gift to the next of kin was one to a class. We have uniformly held that, unless the will sufficiently expresses a contrary intent, a limitation over, after a life estate, to the issue of the life tenant, and, failing issue to the heirs, or heirs at law, or to the children or grandchildren of the testator, or to children of another than the testator, are gifts to a class, and vest in point of right upon the testator's death, although their right of possession is postponed until the termination of the life estate.

We have adopted this rule in the belief that it leads to the early vesting of estates, and will carry out the probable intent of the testator, where the will indicates no contrary intent. Norton v. Mortensen, 88 Conn. 28, 89 A. 882; Allen et al., Trustee, v. Almy, executor, et al., 87 Conn. 517, 89 A. 205, Ann.Cas. 1917B, 112; Bartram v. Powell, 88 Conn. 86, 89 A. 885; Wilde, administrator c. t. a., v. Bell et al., 86 Conn. 610, 87 A. 8; Nicoll Tr. v. Irby, executrix, et al., 83 Conn. 530, 77 A. 957. This ruling is equally applicable to every class gift, and hence to the gift to " next of kin." Authorities elsewhere so hold with marked unanimity. Note to Tatham's Estate, Ann.Cas. 1917A, 855, 859.

This will, read in the light of the circumstances surrounding the testator, does not indicate in any particular an intention of the testator to postpone the vesting of the estate until the termination of the life estate. And we have expressly held that the creation of the life estate is insufficient to base thereon an implication that the testator intended such postponement. Thomas v. Castle, 76 Conn. 452, 56 A. 854.

If " next of kin" designates a class, and the title to this share vests in the class at the death of the testator, our next question is: What persons are included within this term? It is used in the law with two meanings: (1) The nearest blood relations according to the law of consanguinity; and (2) those entitled to take under the statutory distribution of intestate estates. We are to ascertain in which sense it is used in this will. Of course, the intention of the testator, adequately expressed, will determine. Where this is not manifest, some courts adopt the first, and some the second, meaning. The greater number of the cases attribute to this term, when used without qualifying words, the meaning of nearest blood relatives. This is the construction now adopted by the courts of Great Britain, Massachusetts, and Michigan. Elmsley v. Young, 2 Myl. & K. 780; Swasey v. Jaques, 144 Mass. 135, 10 N.E. 758, 59 Am.Rep. 65; Clark v. Mack, 161 Mich. 545, 126 N.W. 632, 28 L.R.A. (N. S.) 479. While in Ohio, New Hampshire, and North Carolina the term is held to designate those entitled to take under the statute of distributions.

In Godfrey et al. v. Epple et al., 100 Ohio.St. 447, 126 N.E. 886, 11 A.L.R. 317, a life estate was given to the wife, and after her death the estate remaining was directed to be divided " equally between my and my wife's nearest kin." The court held that nearest of kin meant those entitled to take under their statute of distribution. Nearest of kin and next of kin are synonymous. The opinion of Chief Justice Nichols expresses our thought as to the meaning of next of kin in a will where there are no qualifying words:

" In a primary sense, some authors say these expressions indicate the nearest degree of consanguinity. *** If it were followed, it would mean that, if a married man by his last will should provide simply that his property should pass to his nearest of kin, his wife, should she elect to take under the will, would be barred from all participation in the estate; and yet it is indisputable that, if the married man in whose home domestic felicity reigned were asked as to his conception of the personnel of his nearest of kin, his certain reply would be, ‘ My wife.’ The primary sense, it is therefore fair to say, is not by any means the universal, or even popular, sense of the term. *** There is a primary rule, applicable to the construction of wills, that the heir at law shall not be disinherited by conjecture, but only by express words, or necessary implication. *** We do not feel inclined to favor a construction, unless it be a necessary one, against all principles of natural justice and against the well-settled policy of inheritance as provided by our law. We believe that the children of a testator's deceased brothers and sisters have just as much claim on his bounty as his living brother and sister would have. *** Having the choice, therefore, of construction, we are disposed to adopt the interpretation that appears to us to be most consonant with the principles of natural justice, and which conforms to the well-settled legislative policy of the state, as well as the later judicial construction given the same phrase when found in our statutes." Id.; Pinkham v. Blair, 57 N.H. 245; May v. Lewis, 132 N.C. 115, 43 S.E. 550.

If next of kin be construed to mean nearest blood relatives, then the right of representation is denied, and children take to the exclusion of wife or husband. In common speech and general understanding, next of kin would include the children of a deceased child and the wife and husband. We are persuaded that it will carry out the testator's intent more often if we hold that this term, in the absence of qualifying words, was intended by the testator to include those who fall within the designation in the general speech and understanding of men, rather than in their primary and original sense as the nearest in blood. If we construe this term in connection with...