Harris v. Weed

• Decision Date: 02 March 1915
• Citation: 89 Conn. 214,93 A. 232
• Court: Connecticut Supreme Court
• Parties: HARRIS v. WEED et al.

93 A. 232

89 Conn. 214

HARRIS

v. WEED et al.

Supreme Court of Errors of Connecticut.

March 2, 1915.

Appeal from Superior Court, Fairfield County; Lucien F. Burpee, Judge.

Suit to quiet title to real estate by Benjamin Harris against Arthur W. Weed, Maury, and others. Judgment for the plaintiff, and the defendant Maury appeals. Reversed and remanded, with directions to enter judgment in favor of the defendant Maury, and to grant new trial against defendant Weed.

John E. Keeler and John C. Durey, both of Stamford, for appellant. Maury. Nichols C. Downs, of Stamford, for appellee plaintiff. Stanley T. Jennings, of Stamford, for appellee Arthur W. Weed. Edward O. Jansen, of Stamford, for appellees Nellie B. Mead and others.

BEACH, J. The complaint alleges that the defendant Maury entered into a written contract with the plaintiff to purchase certain described real estate; that the plaintiff was ready, able, and willing to perform, and offered to perform, but the defendant refused to accept a deed or pay the purchase price, claiming that there was an outstanding interest in some of the heirs at law of one Abigail Waterbury, and that the plaintiff had not offered to convey a good title. It also alleges that the plaintiff derived his title to the premises through a warranty deed given by the defendant Weed. Plaintiff claims: (1) That the title to the premises be settled and quieted and adjudged to be in the plaintiff; (2) specific performance by the defendant Maury of the contract sued on; (3) incidental damages for breach of the contract; (4) as alternative relief a judgment against the defendant Weed, for breach of warranty of title. All the heirs at law of Abigail Waterbury are made parties defendant, including a number of nonresidents, most of whom have made default of appearance. Four nonresident heirs appeared and answered, but have not joined in his appeal.

The controverted question is whether there is any interest in the premises outstanding in the heirs of Abigail Waterbury other than those whose interest is conveyed by the deed which the defendant Maury refuses to accept.

The material facts are found to be substantially as follows: In 1861, and prior thereto, Mary Waterbury, Maria Waterbury, and Abigail Waterbury were tenants in common, each owning an undivided one-third of land in Darian, in which was included the premises in question. In 1861 Abigail Waterbury died, leaving a will of which the disposing words are as follows:

"Item. I do give, devise and bequeath all of my interest, right and title to my sister Mary to the house in which I do now reside.

"Item. I give to my sister Hannah, widow of Elisha Seely, two hundred dollars.

"Item. After the payment of my just debts and funeral charges I give to my nephew, Jonathan Waterbury, the use and improvement of the residue of all my real estate and after his decease to be equally divided between his lawful heirs."

Abigail Waterbury left surviving her three sisters, one living brother, and the children of a deceased brother, who would have constituted her heirs at law in case of intestacy. Jonathan M. Waterbury, the life tenant under the residuary devise, was a son of the living brother.

The plaintiff owned, and by his deed offered to convey to the defendant Maury, the entire interest formerly owned by Mary and Maria Waterbury, and the entire interest of Jonathan M. Waterbury, and of his children; so that, if the remainder to the lawful heirs of the life tenant in the residuary devise can be saved by construing it as a remainder to the children of the life tenant, the deed as tendered was a good and sufficient conveyance. But if the remainder to the heirs of the life tenant cannot be so construed, it is void, and there is an outstanding interest in the other heirs of the testatrix, which is not conveyed by the deed.

The devise of the remainder to the heirs of the life tenant is on its face in conflict with the statute of perpetuities in force at the death of the testatrix, but the trial court found that the testatrix used the words "lawful heirs" in the sense of "children," and for that reason held the residuary devise valid and the plaintiff's deed sufficient.

The surrounding circumstances which influenced this conclusion are found as follows: The original will was written upon a small sheet of note paper and was hastily drawn by the attending physician, who was not learned in the law and not familiar with the exact and proper use of legal terms and phrases. It was executed during the last illness of the testatrix, who was an illiterate person, and signed by her mark, a few days before her death. Jonathan M. Waterbury the life tenant under the residuary devise, had lived with the testatrix from infancy until about 30 years of age. At the time the will was executed he had two young children and lived with them near the home of the testatrix. These facts indicate that the testatrix preferred Jonathan and his two children above her other relatives, and they may be sufficient to raise a doubt whether the scrivener or the testatrix fully understood the legal significance of the word "heirs"; but they have no tendency at all to show that in this will the word "heirs" was used in the sense of children.

The rule on this particular point is well settled by repeated decisions of this court, of which the latest expression is as follows:

"The word 'heirs,' in its primary meaning, designates those who in the absence of a will are by law entitled to inherit the real estate of a deceased. * * * This is the meaning which is to be given to it in the construction and interpretation of wills, unless, when read in the light of the circumstances surrounding the testator, it clearly appears from the will itself that he used the words in a different meaning." Allen v. Almy, 87 Conn. 517, 522. 89 Atl. 205, 207.

This does not mean that the use of the word "heirs" in a will creates a patent ambiguity, so that extrinsic evidence is in every case admissible to show in which of two equally possible meanings the testator probably used it. It means that the word, when used in a will, has a primary significance from which it cannot be wrested unless there is something in the language of the will itself, when read in the light of the surrounding, circumstances, which clearly indicates that it was used in a different sense.

The only language in this will which is pointed to as indicating that the testatrix used the word "heirs" in any other than its natural and primary sense is the use of the word "between," instead of "among," in the provision for an equal division of the remainder interest between the heirs of Jonathan M. Waterbury. This is said to indicate that she had in mind the two young children of Jonathan. Jonathan, however, was then but little more than 30 years of age, and might be expected to have other issue, as in fact he did have one other, and the plaintiff is compelled to admit that the testatrix intended all of the children of Jonathan, whether two or more, to share equally in the remainder. The alleged dual significance of the word "between" does not, therefore, tend to show that the testatrix intended to refer to children rather than to heirs. It is also very doubtful whether, in this context, the word has any dual significance whatever. Lord v. Moore, 20 Conn. 122.

We think the word "heirs" in this will must be read in its primary sense; that under a long line of decisions, which need not be cited and cannot now be questioned, the remainder to the heirs of the life...