Colonial Bank & Trust Co. v. Stevens

• Decision Date: 26 June 1972
• Citation: 316 A.2d 768,163 Conn. 612
• Court: Connecticut Supreme Court
• Parties: , 164 Conn. 31 COLONIAL BANK AND TRUST COMPANY, Executor and Trustee (ESTATE of George A. STEVENS, Jr.) v. George W. STEVENS et al.

Page 768

316 A.2d 768

163 Conn. 612, 164 Conn. 31

COLONIAL BANK AND TRUST COMPANY, Executor and Trustee (ESTATE of George A. STEVENS, Jr.) v. George W. STEVENS et al.

Supreme Court of Connecticut.

June 26, 1972.

On Reargument Nov. 1, 1972.

[164 Conn. 612] David T. Ryan, Hartford, with whom, on the brief, were Robert M. Fitzgerald Litchfield, and Louis B. Blumenfeld, Wallingford, for plaintiff.

Harry Cohen, New Milford, for named defendant and others.

Edward W. Manasse, Torrington, for defendant Donna L. Andreason and others.

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and MacDONALD, JJ.

PER CURIAM.

The plaintiff, as executor and trustee under the will of George A. Stevens, Jr., brought this action seeking the advice of the Superior Court as to the construction of the testator's will and the answers to various questions which have arisen with regard to the administration of a trust consisting of the residue of his estate. In brief, the principal problem arises in interpreting the language creating the trust which provides that the trustee shall invest the residue of the estate and pay over to five of the testator's children the sum of $400 a year and to a sixth child the sum of $600 a year 'until the corpus of said trust, together with all accumulations of rents, profits, issue and income thereon, has been fully distributed.' After this direction, there then follow ambiguous provisions for the contingencies in the event of the death of a child with or without issue but no express provision for termination of the trust or final distribution of the corpus otherwise than by exhaustion of the corpus by payment of the specified annual amounts. The allegations of the plaintiff's substituted complaint were all admitted and, on the request of the parties, the court reserved the action for the advice of this court and the answers to nine questions.

We find the record insufficient to afford a basis for an answer to the reserved questions. It contains no information as to the value of the corpus of the residuary trust, the amount of annual income which it produces, the expense of administration, or the variance between net income and the total of $2600 annual payments directed to be made to the children of the testator, or other established facts, if any, bearing on the question of the intent of the testator. Although the parties have briefed arguments predicated on the disfavor with which courts view testamentary provisions for the accumulation of income, the provisions of the rule against perpetuities and the presumed intention of the testator, the court is not sufficiently informed of the essential basic facts relative to the trust to answer the reserved questions. The closest approach to a disclosure of the necessary facts is found in the admitted allegations of paragraph fourteen of the complaint as amended which states: 'From the date of death of the decedent to the date hereof the total income from the residuary estate has exceeded the required total annual payments to the beneficiaries named in the will. The plaintiff, as the prospective trustee, believes that future annual net income from said trust fund after paying therefrom administration, management and other proper charges and expenses will continue to exceed the present annual payments required under said will.' Such an admitted allegation, without more, furnishes to this court no basis for a determination as to whether the belief of the trustee has a sound factual basis and if it has the extent of any excess income or, in connection with the ascertainment of the testator's intent, whether over a period of time such excess would result in an unreasonable accumulation during the undisclosed life expectancy of the testator's children. We are confronted with a reservation which is factually inadequate for a determination of the questions reserved and, in the absence of further essential facts, we are unable to give to the parties the advice which they seek.

The case is remanded to the Superior Court for decision or the ascertainment of the facts necessary to an answer to the questions propounded by the parties.

ON REARGUMENT

HOUSE, Chief Justice.

This action, which came before us on a reservation from the Superior Court, sought advice on several questions involving the construction, validity and legal effect of a trust created by the will of George A. Stevens, Jr., to whom we will hereafter refer as the testator. The parties joined in requesting the reservation, agreed on nine questions to be submitted for the advice of this court and stipulated that '(t)he questions arise upon the facts admitted in the pleadings.'

This court found that the record was insufficient to afford a basis for an answer to the reserved questions and remanded the case to the Superior Court for a hearing and decision or the ascertainment of additional facts necessary to an answer to the questions propounded by the parties. In ordering the remand, we indicated the areas in which we found the record to be deficient. Thereafter, the parties joined in a motion for leave to reargue and, with the permission of this court, filed a further stipulation correcting the deficiencies in the earlier record as submitted. In view of the nature of the action, the joint motion of the parties and their further stipulation, we decided to accept the reservation and consider the reserved questions on the basis of the original record as supplemented by the additional stipulation.

The testator, a resident of the town of New Milford, died on March 26, 1967, leaving a last will and testament executed on September 27, 1966. The will was duly proved, approved, allowed and admitted by the Probate Court and letters testamentary were issued to the executor therein named which, as the result of a merger, is the present plaintiff trust company, now the trustee. The executor has settled all claims against the estate and the Probate Court has accepted and approved its administration account. No assets have been turned over to the bank as trustee pending the termination of this action.

On the date of his death, the testator, a widower, left, as his sole heirs-at-law and next of kin, two sons, George and Robert, and four daughters, Mary, Katherine, Etta and Grace. They, along with their children, are the defendants. All of the children of the testator have children of their own with the exception of Robert who, at the time of the testator's death and up to the time of the bringing of this action, was unmarried. As some of the grandchildren of the testator are minors, the court appointed a guardian ad litem for those minor defendants and 'for all future unborn grandchildren or great grandchildren of the decedent.'

The troublesome portion of the will and the one which gives rise to the present action is Article Six, ¹ which established a testamentary trust of the residue of the estate after the satisfaction of the legacies set out in Articles Two, Four and Five. Under the provisions of Article Six, the trustee is directed to pay over to George, Mary, Katherine, Etta and Grace the sum of $400 a year, and to Robert the sum of $600 a year 'until the corpus of said trust, together with all accumulations of rents, profits, issue and income thereon, has been fully distributed.' While in some instances such a provision would, without more, suffice to insure a distribution of all income and corpus to designated individuals, the supplemented record discloses that from the date of the death of the testator to the present date the annual income from the residuary estate, after deducting the costs of administration, has exceeded the specified total annual payments to the beneficiaries named in the will and the reasonable probability is that without any invasion of the corpus of the trust estate the income alone will be sufficient to make all the annual payments specified in the will. The record indicates that on June 30, 1972, the trust estate had a market value of $68,427.27. Thus, the questions reserved for our advice ² primarily concern what should be done withthe income from the trust which exceeds the required annual payments under Article Six, §§ 2(a) and 2(b) of the will and when, to whom, and in what proportions, the corpus should be distributed in the event that it is not exhausted by the payment of the specified annual payments.

It is clear from even the most cursory reading of the provision in question that Article Six is inartfully drafted and is, as a result, ambiguous and deficient. This fact alone, however, will never be sufficient cause to invalidate the testamentary scheme of a testator when, employing the basic rules of will construction, a court can discern with requisite precision, the true dispositive intent of the testator. 'The controlling fact in the interpretation of testaments is the expressed intent as disclosed by the testator's language. This language will be read in its entirety and with the purpose of gathering from its general scheme, scope, and character and the nature of its provisions what the intention was. In this search for intent, purely artificial and arbitrary rules of mere literary construction can properly play (but) a small part and, if allowed, might easily result in an undeserved importance being attached to a purely accidental choice of words.' White v. Smith, 87 Conn. 663, 668, 89 A. 272, 274; see also Budington v. Houck, 134 Conn. 72, 76, 54 A.2d 671; Union & New Haven Trust Co. v. Ackerman, 114 Conn. 152, 157, 158 A. 224. 'All that is required . . . is a clear expression of the testator's dispositive intent.' Mott v. Teagle Foundation, Inc., 156 Conn. 407, 413, 242 A.2d 739, 742; Dennen v. Searle, 149 Conn. 126, 132, 176 A.2d 561; Beardsley v. Merry,136 Conn. 573, 575, 72 A.2d 829; Angus v. Noble, 73 Conn. 56, 64, 46 A. 278. 'The intent of the testator as expressed in the will as a whole is the decisive factor, however, and that intent must be determined...