Connecticut Bank & Trust Co. v. Bovey

• Decision Date: 19 January 1972
• Citation: 292 A.2d 899,162 Conn. 201
• Court: Connecticut Supreme Court
• Parties: The CONNECTICUT BANK AND TRUST COMPANY, Trustee (ESTATE of Robert L. WALKER) v. Evelyn W. W. BOVEY et al.

Page 899

292 A.2d 899

162 Conn. 201

The CONNECTICUT BANK AND TRUST COMPANY, Trustee (ESTATE of Robert L. WALKER) v. Evelyn W. W. BOVEY et al.

Supreme Court of Connecticut.

Jan. 19, 1972.

John J. McGrath, Hartford, with whom was John E. Silliman, Hartford, for appellant (defendant Lake).

Charles W. Page, Hartford, Guardian ad litem, for appellees (all other defendants).

Robert C. McNally, Hartford, for the plaintiff.

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

SHAPIRO, Associate Justice.

This is an action brought by the plaintiff, as trustee, under a trust agreement dated July 1, 1930, for instructions by the Superior Court regarding the proper distribution of an undivided one-fourth interest in the trust corpus and the income accruing thereon. From the judgment rendered answering eight questions submitted to the court for the purpose of determining the construction and effect regarding a portion of the trust agreement, an appeal was taken to this court. ¹ Our consideration, however, of questions A, E, F and G and the answers thereto are dispositive of the appeal.

The finding, which is not subject to correction, recites the following facts: This action for the construction of an irrevocable and unamendable inter vivos trust agreement, expressly providing that it shall be governed by Connecticut law, seeks a determination as to whether, as used in the trust agreement, the words 'child' or 'children' include an adopted child. The trust agreement was created on July 1, 1930, by its settlor, Robert Leslie Walker, a resident of Hobart, Tasmania, and it provided that the net income was to be paid for life to Robert's brother Cecil and the latter's wife Madge if she survived her husband. ² The agreement also provided that on the death of the survivor, the income was to be divided equally among Cecil's four daughters for the duration of their lives and, on the death of any one of the four 'without leaving a child or children or issue her surviving,' her share of the income 'shall thereafter go to augment the shares of the survivors or survivor of said four daughters for and during their lives respectively.' The agreement provided alternatively that on the death of any of the four daughters, one-fourth of the trust corpus shall be paid over free of trust to 'the child or children and to the issue to any deceased child' surviving the deceased daughter. The agreement also provided that if such deceased daughter left no 'child or children, or the issue of any deceased child, her surviving,' said one-fourth share of the trust corpus 'shall go to augment the share of the survivors or survivor of said four daughters for payment of income to them during life . . . and for purposes of distribution of corpus to their issue at death as herein provided.'

On January 20, 1950, Cecil Walker died, his wife having predeceased him, and he left as his only heirs-at-law his four daughters. One of the daughters, Elinor Thurgood, died on March 9, 1966, leaving an adopted son, Robin Lake, but leaving no children born to her. Robin was born on March 18, 1939 and was adopted by Elinor Thurgood and her husband on November 5, 1941, more than ten years after the execution of the trust agreement. Robert Leslie Walker, the named settlor of the trust created by the agreement of July 1, 1930, died a bachelor on July 1, 1940, leaving, as his only heir-at-law his brother Cecil. Following Cecil's death, the plaintiff paid the trust income in equal shares to his four daughters until Elinor Thurgood's death on March 9, 1966. Since her death, the plaintiff has accumulated into a segregated fund Elinor Thurgood's former one-fourth interest in the income, pending a judicial determination of the rights of those entitled to it. The trust agreement of July 1, 1930, is both irrevocable and unamendable and contains no evidence on its face as to the intent of the settlor relative to the inclusion or exclusion of an adopted child within the term used therein of 'child or children'. Robert Leslie Walker had no thought or question of anyone adopting a child. He was a bachelor and was against taking any unnecessary responsibilities and would certainly have been against adoption.

On the foregoing facts, the court concluded that Robert Leslie Walker was the actual settlor of this trust and his assets were used to fund the trust; that where no intention to include adopted children to share in the benefits therefrom appears from the language of a pre-October 1, 1959, instrument and the surrounding Circumstances, such children will be presumed to be excluded within the meaning of such words as 'child' 'children' 'issue' and 'descendants'; that Robin Lake is not entitled to his deceased mother's (Mrs. Thurgood's) one-fourth interest in the corpus of the trust created by the agreement of July 1, 1930; and that the question propounded as appear in paragraph 8 of the complaint should be answered was recited in the judgment. ³

The defendant Robin Lake assigns error in the conclusions reached by the trial court. They are tested by the finding. Brauer v. Freccia, 159 Conn. 289, 293, 268 A.2d 645; Brockett v. Jensen, 154 Conn. 328, 331, 225 A.2d 190. The conclusions reached by the court must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case. Brauer v. Freccia, supra; Johnston Jewels, Ltd. v. Leonard, 156 Conn. 75, 79, 239 A.2d 500.

The position taken by Robin Lake, stated simply, is that no intention appears from the provisions of the trust agreement dated July 1, 1930, nor from the circumstances surrounding its execution that the settlor had, at that time, any intent to either include or exclude an adopted child within the class gift to 'child or children'; that through Mrs. Thurgood, his adoptive mother, he is an heir-at-law of the settlor, Robert Leslie Walker; that under our statutes of adoption and distribution he is the 'child' of Mrs. Thurgood; and that he should not be disinherited because he is an adopted child rather than a child born to Mrs. Thurgood.

The term 'child' or 'children', when used in a trust instrument or a will, may include an adopted as well as a natural child if an intent to include the adopted child definitely appears from a reading of the instrument in light of the circumstances surrounding the settlor at the time of execution. Morgan v. Keefe, 135 Conn. 254, 257, 63 A.2d 148; Middletown Trust Co. v. Gaffey, 96 Conn. 61, 67, 112 A. 689. Otherwise, these terms will be presumed to have been used in their ordinary and primary meaning. Connecticut Bank & Trust Co. v. Hills, 157 Conn. 375, 378, 382, 254 A.2d 453; Bankers Trust Co. v. Pearson, 140 Conn. 332, 356, 99 A.2d 224; Bridge-port-City Trust Co. v. Buchtenkirk, 143 Conn. 531, 538, 124 A.2d 231; Ansonia National Bank v. Kunkel, 105 Conn. 744, 750-751, 136 A. 588; Middletown Trust Co. v. Gaffey, supra, 96 Conn. 71, 112 A. 689. In Parker v. Mullen, 158 Conn. 1, 5, 255 A.2d 851, we held that the word 'children,' in its primary meaning, connotes blood relationship and except where the testator or settlor is the adopting parent, will not be construed as embracing an adopted child unless a clear intent appears that the word be given a more extended meaning. Where no intent to include the adopted child can be ascertained, the common law favors ancestral blood and will presume that the settlor did not intend that a stranger to his blood take. Middletown Trust Co. v. Gaffey, supra; Ansonia National Bank v. Kunkel, supra. This presumption is merely an aid to construction, of course where the intent of the settlor is otherwise undisclosed. Trowbridge v. Trowbridge, 127 Conn. 469, 474, 17 A.2d 517.

Seldom can any clear expression of an intention to include an adopted child be found where, as here, an adoption takes place subsequent to the execution of the trust instrument and the settlor did not know that any adoption was even contemplated when the instrument was executed. Connecticut Bank & Trust Co. v. Hills, supra, 157 Conn. 380, 254 A.2d 453; Bankers Trust Co. v. Pearson, supra; Mooney v. Tolles, 111 Conn. 1, 10, 149 A. 515. Robin Lake concedes that nothing appears from the face of the trust instrument or from circumstances surrounding its excution to suggest that the settlor ever intended to include him. Certainly, a failure to express disapproval is not the equivalent of approval. Connecticut Bank & Trust Co. v. Hills, supra, 157 Conn. 381, 254 A.2d 453.

Cases such as Parker v. Mullen, supra, Mooney v. Tolles, supra, and Ansonia National Bank v. Kunkel, supra, were all situations where a...