Cumming v. Pendleton

• Decision Date: 27 January 1931
• Citation: 112 Conn. 569,153 A. 175
• Court: Connecticut Supreme Court
• Parties: CUMMING v. PENDLETON et al.

153 A. 175

112 Conn. 569

CUMMING v. PENDLETON et al.

Supreme Court of Errors of Connecticut.

January 27, 1931

Case Reserved from Superior Court, Fairfield County; Christopher L. Avery, Judge.

Suit by Alida J. Cumming, executrix, against Alida Estelle Pendleton and others, for construction of the will of Thomas Cumming deceased. Reserved by the court, upon an agreed statement of facts, for the advice of the Supreme Court of Errors.

Questions answered.

Nehemiah Candee, of South Norwalk, for plaintiff.

John T. Dwyer, of South Norwalk, for defendant Alida J. Cumming.

Raymond E. Hackett, of Stamford, for defendants Alida Estelle Pendleton and others.

Argued before MALTBIE, HAINES, HINMAN, BANKS and AVERY. JJ.

HAINES, J.

Upon the death of Thomas Cumming on May 15, 1901, he left surviving him a widow, Alida J. Cumming, and as his heirs at law two minor children, Alida Estelle Cumming (now Alida Estelle Pendleton) and Thomas William Cumming. By his will dated February 3, 1904, and probated June 4; 1904, he named his wife, Alida J. Cumming, as executrix, and disposed of all his property, both real and personal, which was of an appraised value of $19,130.34 exclusive of certain reals estate in Florida. Late in 1915 the Florida property was sold, and the widow and the two children joined in the deed of conveyance and mutually agreed upon a division of the proceeds of the sale. It further appears that the executrix made an application to the court of probate for the ascertainment of the heirs and distributes of the estate, but no order of distribution appears in the files of that court. There does appear, however, a bond, Exhibit B, signed by Alida J. Cumming and Harry C. Frost, with certain recitals therein. The widow contends that the terms of the sale of the Florida real estate and the division of the proceeds, as well as the recitals of the bond, are outside the scope of the questions now before us as to the proper interpretation of the will, and should not be considered by is in reaching our conclusions, while the children say they are proper matters for us to consider.

The will of Thomas Cumming is short, consisting of but three paragraphs, the first in the usual form providing for the payment of debts and funeral expenses and the expense of the settlement of the estate, and the second and third paragraphs reading as follows:

" Second. All the rest, residue and remainder of my estate, both real and personal wheresoever, and whatsoever the same may be, I give, devise and bequeath to my wife Alida J. Cumming.

" Third. If my wife Alida J. Cumming should re-marry, it is my desire that my estate be divided equally share and share alike between her and my daughter, Alida Estelle and my son, Thomas William.

" I hereby nominate, constitute and appoint my said wife Alida J. Cumming, the Executrix of this my will. ***"

Upon this state of facts, eight questions are asked of us, the first two being as to whether the facts concerning the disposition of the Florida real estate and the recitals in the bond are admissible in evidence in connection with the questions relating to the construction of the will. The remaining six, in differing forms, ask in effect the determination of the respective rights and interests of each of the parties under the two provisions of the will which we have quoted.

The facts to which the first two questions relate have been stipulated by the parties and are before us for our consideration. The substantive rights of the parties are however, to be determined without a trial, and the question whether these facts would be admissible in evidence is neither necessary nor proper in this proceeding.

The bond, Exhibit D, recites that the widow, Alida J. Cumming, " has been given control of the entire estate of the said Thomas Cumming until she shall re-marry, and in the event of her re-marriage, that said estate shall be divided equally" between her and the two minor children. It further recites that she was thus given control " by the terms of distribution of the estate *** in the Probate Court of the District of Greenwich." The condition of the bond which contains the agreement is based upon this recital, and requires she shall keep the estate intact so long as she remains the widow of Thomas Cumming, and, in the event of her remarriage, shall deliver to said minor children their proper share in said estate. Turning to the agreed statement of facts, we find that " no order of distribution appears in the files and records of said court." Whatever the explanation of this seeming contradiction, it is apparent that the parties were endeavoring by this bond to follow a construction of the will which they at least thought had been put upon it by the court of probate. Certainly it is not in terms their own interpretation voluntarily agreed upon.

As to the facts regarding the Florida real estate and its sale and the disposition of the proceeds: As these are stated in paragraph 11 of the stipulation, it appears that the property was sold in 1925 for $55,000 and the widow and children joined in the deed of conveyance, and that " no judicial construction of said will having been made in Florida" they " agreed upon a division of the proceeds of said real estate among themselves." We do not look upon this as necessarily indicating the views of the parties as to the proper legal construction of the terms of the will. So far as appears, the division among themselves was without any reference whatsoever to the provisions of the will; and, further, it does not appear what the terms of the division were. Even were any of these facts indicative of the understanding of the parties as to the meaning of the will, it would not be competent evidence of the testator's intent in using the language he did, nor of his understanding of its meaning. Clark v. Baker, 91 Conn. 663, 667, 101 A. 9. We conclude that neither the bond nor the Florida transaction has any relevant value in our inquiry, and we exclude them from further consideration.

Examining the language of the will itself, it is at once apparent that the residuary clause, standing alone, is sufficient to give the widow an absolute estate in the entire residuary fund, though it does not use the word " heirs" or other term of inheritance. White v. White, 52 Conn. 518, 520; Houghton v. Brantingham, 86 Conn. 630, 639, 86 A. 664; Burr v. Tierney, 99 Conn. 647, 651, 122 A. 454. After thus giving her the residuary estate in the second paragraph, the testator adds, immediately following, the third paragraph above quoted.

The words " If my wife *** should re-marry," are apt to impose a condition. Cleaveland: Conn. Probate Law, vol. 1, p. 564, par. 427. But counsel for the widow claim that this clause is precatory only and not imperative and so does not amount to a testamentary disposition, and that, in any event, the second paragraph exhausts the estate, rendering this third paragraph nugatory. It is true that the words, " It is my desire," are primarily precatory, indicating a wish or expectation rather than an express intent or direction. On the other hand, " an expression may be imperative in its real meaning, although couched in language which is not imperative in form; and, when it appears to have been used in this sense by the testator, the courts will give it due effect. If it is used by way of suggestion, counsel, or advice, with a view to influence, but not to direct, the discretion of the party, it will not raise a trust." 49 A.L.R. page 13; Russell v. United States Trust, Co. (C. C.) 127 F. 445; Perry on Trusts (3d Ed.) vol. 1, p. 114 (note); Jarman on Wills (5th Ed.) vol. 1, p. 680. In a very similar case we said: " A vast number of cases could be collected in which the words " will,' ‘ wish,’ ‘ desire,’ and other words have been held to create trusts, and probably as many where this result has not occurred. These words have no invariable construction. To cite and then attempt to distinguish these cases would in no way be helpful. In general, each will must stand by itself, and we have held that precedents are entitled to but little weight in the construction of wills, where the cases are not precisely analogous." Loomis institute v. Healy, 98 Conn. 102, 123, 119 A. 31, 38.

There are several rules of construction to be borne in mind in this connection. Not only must all parts of the will be considered, but each and all its provisions should, so far as possible, be harmonized and given effect. Gold v Judson, 21 Conn. 616, 624; Colt v. Colt, 32 Conn. 422, 446; Security Co. v. Hardenburgh, 53 Conn. 169, 170, 2 A. 391. A construction which will disinherit the natural objects of the testator's bounty is not favored, and a construction which conforms, so far as possible, to our statute of distributions is to be preferred. Conklin v. Davis. 63 Conn. 377, 380, 28 A. 537; Geery v. Skelding, 62 Conn. 499, 501, 27 A. 77; Lyon v. Acker, 33 Conn. 222, 224. Account...