Hartford-Aetna Nat. Bank v. Weaver

• Decision Date: 07 May 1927
• Citation: 106 Conn. 137,137 A. 388
• Parties: HARTFORD-Æ TNA NAT. BANK ET AL. v. WEAVER ET AL.
• Court: Connecticut Supreme Court

137 A. 388

106 Conn. 137

HARTFORD-Æ TNA NAT. BANK ET AL. v. WEAVER ET AL.

Supreme Court of Errors of Connecticut.

May 7, 1927

Case Reserved from Superior Court, Hartford County; Newell Jennings, Judge.

Suit by the Hartford-Ætna National Bank, trustee, and others against Mary B. Weaver and others, for the construction of the will of Lena S. Bond, deceased, brought to the superior court and by it reserved upon an agreed statement of facts for the advice of the Supreme Court of Errors. On questions certified. Questions answered.

Richard H. Phillips, of Hartford, for plaintiffs.

Carlyle C. Thomson, of Hartford, for defendants Gilbert Bond and Jennie S. Barnes.

John F. Addis, of New Milford, for defendants Mary B. Weaver and Daniel T. Weaver.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ.

MALTBIE, J.

The questions in this case arise out of certain provisions in the will of Lena S. Bond. The first four articles of the will provide for the payment of the debts of the testatrix and make certain specific bequests. The fifth article bequeaths the income from $15,000 to her husband, to be paid to him in monthly installments, with a provision that, should emergencies arise making that income insufficient for his support, the trustee of the fund may use such portions of the principal as it deems necessary; the sixth article appoints the plaintiff trustee of the fund; and the seventh article proceeds as follows: " Such sum as may be necessary to pay charges of the trustee shall be set aside for that purpose." The first two questions upon which we are asked to advise are:

" (a) Should the sum provided by paragraph seventh of the will, to be set aside to pay the charges of the trustee under Paragraphs Fifth and Sixth, be taken from the residuary estate and turned over to the trustee by the administrator with the will annexed, in addition to the $15,000 which is the corpus of that trust; or (b) should the said sum of $15,000 only be turned over by said administrator to said trustee from which said trustee should then deduct and set out said sum for his charges."

In so far as the intent of the testatrix is concerned, the form in which the questions are put goes far to answer them. The testatrix obviously had in mind the creation of a special fund out of which the charges of the trustee were to be paid. Had she intended that those charges should be paid out of the income of the $15,000 fund, that result could have been obtained by a simple provision that they be deducted from it, and one with the intelligence manifest in the terms of this will would hardly have created such an unnecessary complication as would arise out of the division of the fund and the allocation of a certain part of it to the discharge of those charges. The testatrix desired her husband to have the whole income of the $15,000 fund, and to that end intended to make an additional provision for defraying the charges of the trustee.

One of the requisites of every bequest of money in trust is that it shall fix with reasonable certainty the amount given. Wordin's Appeal, 64 Conn. 40, 50, 29 A. 238. If the terms of the seventh article were interpreted to mean that a sum should be set aside which would exhaust itself in the payment of the charges of the trustee, it could hardly be sustained as having that certainty; for the amount would largely depend upon the length of time the trust is to last, and that, depending upon the length of life of testatrix's husband, is wholly uncertain. This very uncertainty, obvious as it is, makes it unlikely that this is what the testatrix intended. Moreover, if there is another reasonable interpretation of the provision which will make it valid, we ought to adopt it. Farnam v. Farnam, 83 Conn. 369, 381, 77 A. 70. Construing the language in the light of these considerations, we interpret it as expressing the intent of the testatrix that a sum should be set aside sufficient in amount so that the income would pay the charges of the trustee.

There is nothing in the record to indicate that those charges cannot be fixed in advance with such certainty that the amount of the fund necessary to provide for them can be determined with reasonable accuracy. " Indeed we believe that they may be, and with no more difficulty than is experienced in matters occurring in the almost daily practice of the courts of probate in this state. " Wordin's Appeal, 64 Conn. 40, 52, 29 A. 238, 240; Weed v. Scofield, 73 Conn. 670, 678, 49 A. 22. The remainder interest in this fund would form a part of the residue and be distributed as such at the death of the husband. Should future contingencies bring about a situation where the fund proved to be excessive in amount, that excess should be distributed to those in whom the remainder interest is vested; or, if the situation be such that no part of the principal should be so distributed but an excess of income accumulates, that excess should from time to time be distributed in like manner. Colonial Trust Co. v. Brown, 105 Conn. 261, 283, 135 A. 555.

In the first paragraph of the...