Farnam v. Farnam

• Decision Date: 13 November 1885
• Citation: 53 Conn. 261,5 A. 682
• Court: Connecticut Supreme Court
• Parties: FARNAM and others, Ex'rs, v. FARNAM and others.

5 A. 682

53 Conn. 261

FARNAM and others, Ex'rs,

v. FARNAM and others.

Supreme Court of Errors of Connecticut.

November 13, 1885.

For majority opinion see 2 Atl. Rep. 325.

PARK, C. J., (dissenting.)

I cannot concur in the views expressed by the majority of the court, in regard to the disposition of the principal of the estate, contained in the fifth clause of the will in question. The majority hold that the principal vested by right in the grandchildren of the testator, as a class, at the time of the testator's death. I think no estate in the principal could vest by the terms of the will before the death of the last survivor of the testator's children, and, if Mrs. Farnam should then be living, not before her death.

Although the testator had nearly $2,000,000 of property to bequeath to his wife, children, and grandchildren, still, not contented with dividing this enormous estate among them, he conceived and cherished the scheme of doubling the amount before any disposition of the principal should be made. This he sought to accomplish after his death, by adding to the principal of his estate a large proportion of its yearly income till the death of the last survivor of his wife and children. The testator was in the seventy-ninth year of his age when the will was made. He had five children then living, the oldest of whom was 41, and the youngest 29. It was highly probable—almost certain— that some of them would live to be as old as himself,—would live at least 40 years after his death. Such being the case, the testator must have expected that his great estate would, and therefore intended that it should, accumulate 40 years at least before the time would arrive for the termination of the trust, and before the words, "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," would take effect. I am wholly unable to see how it is possible for these words to convey, at the death of the testator, the beneficial interest in the principal of the estate, as the majority of the court hold. It seems to me the testator labored to make it clear, beyond the possibility of a doubt, that the time when the bequest would take effect was when the trust should terminate at the death of the last survivor of his wife and children. Up to this time he had devised and bequeathed the legal estate in fee-simple to his trustees, by a previous clause in the will, and now, on the death of "the last survivor," etc., he declares that the legal estate in fee-simple, which he had transferred to the trustees, shall terminate; and then lie devises and bequeaths the entire estate, legal and equitable, in fee-simple, to his grandchildren who shall then be living, etc. For greater precision, and seemingly to put the matter beyond all doubt, he repeats the word "then," or its equivalent, a number of times. "At the decease," etc., "this trust shall cease;" "at the decease," etc., "I give." The word "and," between "cease" and "give," is used to supply the words, "at the decease," etc., and save a repetition of them. "And" always signifies an addition to what precedes. The testator says: "At the decease of the last survivor," etc., "this trust shall cease." But this is not all that shall then take place. The testator goes on to say, "and" (that is, in addition to my putting an end to the trust) "I give," etc. Hence, if we supply in words all that is understood by the word "then" and its equivalent, we shall have in the sentence expressing the gift the following: "At the decease," etc., "this trust shall cease." "At the decease," etc., "I give all the estate, which at the decease," etc., "shall be held in trust under this will, to my grandchildren who shall, at the decease," etc., "be living."

And, further, by the terms of the will, manifestly the legal estate in the trustees did not pass, and could not have passed, to the grandchildren on the death of the testator. This is conceded. And it must further be conceded that, on "the death of the last survivor," etc., it will, for the first time, pass to the grandchildren then living, by the words, "I give, devise, and bequeath." These are the only words in the will that make any disposition of the principal estate to the grandchildren. And here they carry the entire estate in fee-simple to such of the grandchildren as shall then be living, and to the living issue of those who shall then be dead. Is it possible that these words had the effect to transfer the equitable interest in the principal estate to the grandchildren on the death of the testator, when here. 40 or 50 years afterwards, the same estate is clearly and unmistakably transferred to them, together with the legal estate?

Again, the testator, in the fifth clause of the will, places himself at the death-bed of the last survivor of his wife and children, and upon his or her death declares that all the object he had in view in trusteeing his property, in order that he might transmit to his descendants an enormous estate, has now been accomplished. He has no more need of trustees, and therefore he says "the trust shall cease, and I give, devise, and bequeath all the estate" now held by the trustees to my grandchildren now living, "and to their heirs forever." He at that time, in legal contemplation, uttered the words of gift.

Again, the article we are considering goes on to say: "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." "Would have been entitled to if living" presupposes that his, her, or their parent had never been entitled to the share, owing to his death before the time when the shares are given by the will. These words show clearly that the testator never supposed that he had given to his grandchildren a vested interest in his estate, which would take effect at the time of his death. And, indeed, so to do might be ruinous to the scheme the testator had in view in trusteeing his property, which was, as we have seen, to transmit to his descendants a vast estate. A vested interest in the grandchildren could be alienated or attached for debt, and it might be that when the vast estate, with all its accumulations for many years, should be ready for distribution in the far future, strangers to the blood of the testator might come in and claim it. The testator had 14 grandchildren living at the time of his death, the eldest of whom was but 11 years of age. During the 40 or 50 years that the trusteeship, in all probability, would have to continue, their number would be doubled or trebled, while death in the mean time would remove some of them; and they would wait with great impatience for the time to arrive when they should come into possession of their...