Comstock v. Bridgeport Trust Co.

• Citation: 138 A. 440,106 Conn. 514
• Court: Supreme Court of Connecticut
• Decision Date: 25 July 1927
• Parties: COMSTOCK v. BRIDGEPORT TRUST CO.

138 A. 440

106 Conn. 514

COMSTOCK v. BRIDGEPORT TRUST CO.

Supreme Court of Errors of Connecticut.

July 25, 1927

Case Reserved from Superior Court, Fairfield County; Edwin C Dickenson, Judge.

Action for declaratory judgment by George A. Comstock administrator, against the Bridgeport Trust Company. Case reserved from the superior court of Fairfield county on an agreed statement of facts for the advice of the Supreme Court of Errors. Questions reserved answered.

Susan V. St. John, a resident of Norwalk, died July 22, 1883, leaving a will dated July 19, 1883, which was duly admitted to probate in the court of probate for the district of Norwalk. The part of the will material to this case is as follows:

‘First To my daughter, Susan V. St. John, I give the use of my homestead in Norwalk, now occupied by me, together with the use of all my horses, carriages, harnesses, tools, farming implements, furniture, books, pictures, plate and household effects in and upon said homestead, for and during her natural life, and upon her decease, the same to go to and vest absolutely in her lawful issue, or, in default of such issue then surviving, then to go to my husband, Charles E St. John and his heirs forever.‘

The second paragraph of the will is a general residuary clause to the husband, and in the third and last paragraph he was appointed executor of her estate.

Susan V. St. John left as her next of kin and only heirs at law a daughter, Susan V. St. John, born February 2, 1874, and a husband, Charles E. St. John. The will was duly probated October 10, 1883. The estate consisted of both real and personal property. On June 24, 1904, a part of the real estate having been sold by order of the superior court for Fairfield county, in a partition suit, the sum of $1,647.02, being a part of the avails of the sale, was, by that court, set aside in the trust for the unborn issue of the daughter, Susan V. St. John, then a single woman. This sum, at the present time, amounts to about $4,000. The defendant, the Bridgeport Trust Company, was by that court appointed trustee of this fund, and thereafter duly qualified, and has ever since been acting as trustee.

The daughter, Susan V. St. John, married George A. Comstock on June 15, 1904; she has no child, and is now and always will be incapable of having any. The husband of the testatrix, Charles E. St. John, a resident of Norwalk, died intestate December 2, 1911, leaving as his only heir and next of kin his daughter Susan V. (St. John) Comstock. On December 21, 1926, the plaintiff, George A. Comstock, was by the probate court for the district of Norwalk, appointed administrator of the estate of Charles E. St. John, duly qualified, and has ever since and is now acting as such administrator.

The questions upon which the advice of this court is desired are as follows:

(a) Are the words " lawful issue" and " such issue" as used in the will repugnant to the statute against perpetuities which was in full force at the death of the testatrix in July, 1883?

(b) If so, is the life tenant entitled to the entire estate as the only heir of her father, now deceased, intestate?

(c) If not, it being a proven fact that the life tenant has no child and cannot have a child, and the father being now deceased, leaving the life tenant as his only heir, is the life tenant entitled to the entire estate?

(d) In the event that the life tenant, Susan V. (St. John) Comstock does not take said estate under either of the two theories heretofore suggested, who is entitled to the same upon her decease without descendants?

(e) Did Charles E. St. John, at the death of the testatrix, take a vested interest in the residuary estate, subject to its being defeated by the birth of children to his daughter and their surviving heir?

(f) Did the testatrix intend to provide only for the contingency of the death of the daughter prior to her father?

Milton C. Isbell, of Ansonia, for plaintiff

Clifton F. Weidlich, of Bridgeport, for defendant.

Lorin W. Willis, of Bridgeport, for unborn issue of Susan V. (St. John) Comstock.

AVERY, J. (after stating the facts as above).

The solution of the questions propounded upon this reservation depends upon the construction of the first paragraph of the will, by which the testatrix purports to give to her daughter the use of her homestead in Norwalk for and during her natural life, and, upon her decease, the same to go and vest absolutely in the " lawful issue" of the daughter or, in default of " such issue" then surviving, then to go to my husband, Charles E. St....