Faenam v. Faenam

• Decision Date: 13 November 1885
• Citation: 53 Conn. 261,2 A. 325
• Court: Connecticut Supreme Court
• Parties: FAENAM and others v. FAENAM and others.

2 A. 325

53 Conn. 261

FAENAM and others

v. FAENAM and others.

SUPREME COURT OF CONNECTICUT.

Filed November 13, 1885.

From superior court, New Haven county. Suit for the construction of a will.

L. H. Bristol, for plaintiffs.

C. R. Ingersoll, for certain respondents.

J. W. Ailing and S. C. Loomis, for other respondents.

CARPENTER, J. The testator's will contains the following: "Fourth. All the rest and residue of my estate, of every kind and wherever situuated, I give, devise, and bequeath to my wife, Ann Sophia Farnam, and my children, George Bronson Farnam, William Whitmore Farnam, Charles Henry Farnam, Sarah Sheffield Farnam, wife of Eli Whitney, Jr., and Henry Walcott Farnam, and to the survivors and survivor of them, as joint tenants in fee-simple, but in trust for the uses and purposes following, to-wit: (1) Out of the net income and profits thereof to pay to my said wife, Ann Sophia Farnam, during her life, the sum of $25,000 annually, in quarterly payments, beginning on the first day of the month next succeeding that of my decease. This bequest and that contained in the second article of this will is in lieu of her right of dower in my estate. (2) The said trustees are, out of said net annual income, to pay to each of my children during their lives, respectively, the sum of $5,000 annually, in quarterly payments, beginning on the first day of the month next succeeding that of my decease. (3) The said trustees are, out of said net annual income, to pay each of my grandchildren, as and when he or she shall arrive at the age of twenty-one years, the sum of $5,000. (4) During the ten years next succeeding my decease, the said trustees shall allow the said net annual income to accumulate, subject always to the payment of said annuities to my said wife, and to my said children, and also to any payments to grandchildren, as aforesaid, and invest the same as part of said trust-estate; and said trustees, after the expiration of said ten years, shall pay two-thirds of the net annual income of said estate annually to my children then surviving, in equal proportions, and if any of my said children shall have then deceased, his or her legal representatives shall be entitled to the share of said annual income that he or she would have been entitled to if living; and said trustees shall allow the remaining one-third of said net annual income to accumulate, and invest the same as part of said trust-estate. Fifth. At the decease of the last survivor of my said children, if my said wife shall not then be living, but, if living, then upon her death, this trust shall cease; and I give, devise, and bequeath all the estate which shall then be held in trust under this will to my grandchildren who shall then be living, to be equally divided among them per capita and not per stirpes, and to their heirs, forever; but if any grandchild of mine shall have died leaving a child or children surviving at the expiration of said trust, such child or children shall take the share that his, her, or their parent would have been entitled to if living; and if any grandchild of mine shall have died leaving a widow surviving at the expiration of said trust, but leaving no child or children then surviving, such widow shall take one-third of the share her husband would have been entitled to if living."

In the construction of this will several questions have arisen. It is claimed by the children of the testator that the fourth and fifth articles are inoperative, or substantially so, for the reason that they are in violation of the statute against perpetuities. This claim, if sustained, requires us to hold (1) that no estate vests in the grandchildren until the death of the widow and all the children; and (2) that it will then vest in a class composed of grandchildren then living, and the children and widows of deceased grandchildren.

The main question is whether the estate in the grandchildren is a vested or contingent remainder. We use the terms "vested remainder" and "contingent remainder," as they have been frequently used in this state, as applicable alike to real and personal property. We do not deem it necessary in this case to make any distinction between the two kinds of property.

When, by the terms of this will, does the estate vest in the grandchildren? At the death of the testator, or at the death of the last survivor of his wife and children? We think it vested, in point of right, on the death of the testator. That courts will incline in doubtful cases to construe a devise or legacy as vested, rather than contingent, is a familial' and well-settled rule. In some instances, courts seem to have gone so far as to say that they will, if possible, construe it as vested. It is enough for our present purpose to say that we ought to give this will that construction if its language will fairly admit of it. The bequest is not in terms contingent, nor is it so by necessary implication. That it may be so construed may be conceded. That it will bear a different construction, and that that is the better one, we shall attempt to show.

It will be noticed that the testator, as to the great bulk of his property, separates the legal from the equitable title; and that separation is to continue until the death of his widow and children. The naked legal title is vested in trustees; the equitable title to the principal and a large part of the income is vested in no one until the termination of the trust, unless it vests in the grandchildren. The testator has made no other disposition of it. The law will not favor a construction which suspends the title or holds it in abeyance. That the testator intended that the grandchildren should ultimately have the property cannot be doubted. That he has not expressly postponed the vesting is equally clear. The doubt arises from the use of the word "then," referring to the time when the trust shall cease, in the fifth article: "I give, devise, and bequeath all the estate which shall then be held in trust under this will to my grandchildren who shall then be living." It is contended, on the one hand, that the word, as first used, is used to indicate the time when the estate is to vest in point of right; on the other hand, it is insisted that it merely indicates the time when it is to vest in possession. It is agreed that it points out the time when the legal and equitable titles merge, and when the estate is to be distributed; and we think it must be conceded that the connection in which it is used does not necessarily require us to say that it is used for the further purpose of indicating the time when the estate vests in point of right. But if it is left in doubt, the rule referred to makes it a vested estate. The word, as used in the last clause; does not refer to the estate, nor to the time of its vesting, but is used to designate the persons who are to take, and will be further noticed when we consider that branch of the case. Another rule is that if the limitation over depends upon an event which is sure to happen, and the persons who are to take can be ascertained during the continuance of the particular estate, the interest is vested. But if it depends upon an event which may or may not happen, or if it is uncertain whether any person will ever be in existence who can take, the estate is contingent. Mr. Redfield states the rule thus: "From a careful examination of the subject, it will be found, we think, that the question of vesting or remaining contingent depends upon whether the condition of the intervening estate determining, or the estate ever taking effect, is one that must happen sometime, and so as to give effect at some period to the second estate, or may never happen. If the former, then the second estate in remainder will always be regarded as vested." Redf. Wills, pt. 2, 594. Again: "A conditional bequest is where its taking effect depends upon the happening of some uncertain event." Redf. Wills, pt. 2, 661; citing 2 Williams, Ex'rs, 1132; 1 Roper, Leg. 605.

The rule thus unqualifiedly stated makes this a vested remainder. The event on which the remainder is to take effect—the death of the widow and children—is sure to happen. Assuming that the grandchildren, as a class, and they only, take the remainder,—a question we shall hereafter consider,—there is no difficulty in ascertaining at anytime who are to take. The remainder is certain to vest at some time, and a certain definite class is designated to take. Under these circumstances the law presumes that the testator intended that the remainder should vest presently. There is a present right of future enjoyment whenever the possession becomes vacant; and that right, coupled with the fact that the time for the enjoyment must come, clearly shows a vested interest.

Mr. Jarman's fourteenth rule is as follows: "That the rule of construction cannot be strained to bring a devise within the rules of law; but it seems that where the will admits of two constructions, that is to be preferred which will render it valid." If this remainder is vested, the statute against perpetuities will not defeat it; otherwise it may. To defeat this will, we are obliged to interpret two of its provisions, concerning which the most that can be said is that they are doubtful, and susceptible of a different interpretation, so as to make it invalid. In other words, we are required to give the benefit of all doubts to those attacking the will, and that for the purpose of destroying it, which is contrary to the rule. The words "I give, devise, and bequeath" import a present interest, unless other provgisions in the will clearly manifest a different intention. "Where the will imports a present interest in the devisee, it is to be construed so that any condition in the same shall be held subsequent and not precedent." Redf. Wills, pt. 2, 685. "The leading inquiry upon which the question of vesting or not vesting turns, is whether the gift is immediate and the time of...