First Nat. Bank & Trust Co. v. Baker
| Decision Date | 17 June 1938 |
| Citation | 1 A.2d 283,124 Conn. 577 |
| Parties | FIRST NAT. BANK & TRUST CO. et al. v. BAKER et al. |
| Court | Connecticut Supreme Court |
Appeal from Superior Court, Litchfield County; Edward J. Quinlan Judge.
Action by the First National Bank & Trust Company, executor and trustee, under the will of Lillie A. Coe, deceased, and others, against Lillian W. Baker and others for construction of the will. From the judgment construing the will, certain of the defendants appeal.
Error in part, judgment set aside, and trial court directed to enter judgment in accordance with opinion.
Lester W. Schaefer and Jonathan F. Ells, both of Winsted, for appellants East Avon Ecclesiastical Soc. et al.
Barclay Robinson, Thomas L. Archibald, and William W. Fisher all of Hartford, for appellants Sherman W. Eddy et al.
Charles M. Lyman, of New Haven, and William F. Healey, of Derby, for appellant Edward C. Wheeler.
Charles P. Roraback, of Torrington, for appellees.
Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN and JENNINGS, JJ.
This action was brought by the executors and the trustee under the will of Lillie A. Coe, deceased, to secure an interpretation of the will and advice as to their duty. On June 11th, 1923, the testatrix made a will the terms of which, so far as relevant to the questions before us, were as follows: She gave a large number of legacies in varying amounts to relatives, one of them being $5,000 to ‘ my nephew Edward C. Wheeler’ ; she established three trusts in the amounts of $30,000, $25,000 and $20,000, respectively, the income to be paid to a named beneficiary or beneficiaries and in each instance provided that ‘ at the termination of said trust the funds constituting it to become a part of my residuary estate’ ; the executor was directed during the settlement of the estate and until the legatees received their legacies ‘ to pay monthly out of the income of the estate interest at the rate of five per centum per annum on the legacies bequeathed’ to certain but not all legatees and until the final settlement of the estate to pay interest monthly at the same rate to the beneficiaries of the trusts on their respective amounts; out of the residue of the estate $125,000, or, if the residue was less than that, all the residue was given to trustees to build and maintain a community house in the town of Avon to be called the Amos Wheeler Memorial, and if the residue exceeded $125,000 the excess was given to a niece and certain nephews.
The testatrix thereafter made five codicils altering or adding to the provisions of the will and in each she ‘ republished and confirmed’ the will except for the changes made in it. In the first codicil she made a further legacy of $5,000 to ‘ my nephew Edward C. Wheeler,’ to be in addition to the legacy given in the will. In the fourth she established two further trusts of $30,000 and $10,000, respectively, the income to be paid to a named beneficiary during his life and provided that at the death of the beneficiary or at her own death should she survive him the trustee should pay or distribute the fund, in one instance, ‘ under the terms of the residuary clause of my said will’ and, in the other, ‘ in accordance with the residuary clause of my said will.’ The fifth and last codicil was made December 9th, 1935, the day before the testatrix died; the only change made was the designation of a trust company to act jointly with the executor named in the will; and this codicil concluded with a statement that: ‘ I hereby republish and confirm my said will and codicils thereto in all respects except as altered by this codicil.’ The life beneficiary in one of the trusts established in the will has died.
The testatrix, when the will was executed, had a nephew Edward C. Wheeler but he died December 8th, 1933, before the execution of the last codicil. He had a son of the same name. The son claimed the legacies originally given to his father, but the trial court held that he was not entitled to them and this conclusion is one of the grounds of appeal. The son is, of course, not correctly described as ‘ my nephew Edward C. Wheeler.’ Matter of Woodward, 117 N.Y. 522, 525,23 N.E. 120,7 L.R.A. 367. The accepted rule of interpretation of wills is that ‘ the primary and usual meaning of a word is to be given it unless the testator's use of it in another and reasonable sense is so clearly indicated, upon examination of the entire will, as to overcome its ordinary significance and satisfactorily establish the unusual meaning contended for.’ City Bank Farmers Trust Co. v. Lewis, 122 Conn. 384, 387, 189 A. 178, 180. We find nothing in the provisions of the will which indicates that the testatrix used the word ‘ nephew’ otherwise than with its primary significance. Indeed, in several places in it, where she made gifts to grandnephews and grandnieces she refers to them as children of her nephews and nieces. The son, however, relies upon the fact that the republication of the will in the last codicil is in effect the making of a new will at that time and argues that, as Edward C. Wheeler, the father, was then dead and the gift to him could not take effect the testatrix could not have intended to continue a provision wholly nugatory and that he, though a grandnephew, is to be regarded as the beneficiary intended. That the republication of the will in the codicil is in effect the making of a new will, with such changes in it as are contained in the codicil, as of the date of the codicil, has many times been held. Luce v. Dimock, 1 Root 82; Giddings v. Giddings, 65 Conn. 149, 160, 32 A. 334,48 Am.St.Rep. 192; Whiting's Appeal, 67 Conn. 379, 388, 35 A. 268; Shey's Appeal, 73 Conn. 122, 46 A. 832; Griffith v. Adams, 106 Conn. 19, 33, 137 A. 20. That does not mean, however, that in determining the construction of the instrument the development of the testamentary intent through the will and the codicils and the circumstances surrounding their execution are to be disregarded and the whole will be read as though it were all originally made at the date of the codicil. ‘ From a will and its several codicils, like a statute with its later amendments, the maker's full intention is to be gathered.’ Giddings v. Giddings, supra (page 335).
The gifts to ‘ my nephew Edward C. Wheeler’ were valid and effective until the death of the father before the making of the last codicil. The failure of the testatrix to make any change in the provisions for him might well have been due to an oversight on her part or to a willingness to abide by the effect of his death before her own as causing the legacies to lapse. There is not the same reason mitigating against attributing to the testatrix an intent to make a nugatory gift as would exist were the whole will originally executed at the date of the codicil. In Lee v. Lee, 88 Conn. 404, 91 A. 269, we had before us a somewhat similar situation. The will gave certain legacies to sisters of the testatrix; they died and thereafter she made a codicil in which she gave legacies to four nieces, including two who were daughters of the deceased sisters, but in which she reaffirmed her will except as altered by the codicil; and we held that the testatrix intended the legacies to the sisters to continue ‘ in the same legal force and effect as before the codicil was executed’ (page 270), that she would be presumed to know the statute under which the issue of a sister to whom a devise or legacy is given and who dies before the testator, takes the devise or bequest made to the parent; and that therefore the issue of the deceased sisters of the testatrix were entitled to the legacies. General Statutes, § 4879. By a parity of reasoning we might here presume that the testatrix knew that, upon the death of her nephew Edward C. Wheeler before her, the gifts to him would lapse and that in the absence of any change in the will as respects those gifts she was content to have that result ensue.
That aside, the son, in order to establish his right to receive the gifts, must assume the burden of showing that the testatrix when the last codicil was made intended the words ‘ my nephew Edward C. Wheeler’ to have a different meaning than that which she had in mind when she originally executed the will. Presumably the will and the codicils which had been previously executed were before the testatrix when she executed the last codicil. If she then had intended to make a bequest to the son of her deceased nephew it is reasonable to expect that she would have so described him, as she described other grandnephews in previous provisions she had made. The sole purpose of the last codicil was evidently to add a co-executor and there is no suggestion of an intent otherwise to change the provisions of the will or prior codicils. Leaving out of consideration for the moment certain extraneous evidence, there is nothing in the situation which shows an intent on the part of the testatrix to make a bequest to the son Edward C. Wheeler.
This extraneous evidence was to the following effect: The testatrix knew of the death of Edward C. Wheeler before the last codicil was executed; the son visited her at times after his father's death; both before and after that occurred she referred to him as her nephew and had stated that he was one of her favorite nephews; and on one occasion after the father's death in January, 1934, she talked to him about the fact of the bequest to his father and said that she had seen a lawyer and had fixed it so that he was to receive what his father was to have received had he lived. The trial court admitted the evidence, subject to objection to be later ruled upon apparently with the consent of all parties. In its memorandum of decision it held the evidence inadmissible...
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