Hartford-Connecticut Trust Co. v. Hartford Hosp.

• Decision Date: 31 March 1954
• Docket Number: HARTFORD-CONNECTICUT
• Citation: 141 Conn. 163,104 A.2d 356
• Court: Connecticut Supreme Court
• Parties: TRUST CO. v. HARTFORD HOSPITAL et al. In re DAVIS' ESTATE. Supreme Court of Errors of Connecticut

Page 356

104 A.2d 356

141 Conn. 163

HARTFORD-CONNECTICUT TRUST CO. v. HARTFORD HOSPITAL et al. In re DAVIS' ESTATE.

Supreme Court of Errors of Connecticut.

March 31, 1954.

William K. Cole, Hartford, for plaintiff.

William L. Beers, New Haven, and John N. Reynolds, New Haven, for defendant Frederick E. Lewis.

James W. Carpenter, Hartford, with whom was Leo Rosen, Hartford, for defendants Doris B. Mathewson and others.

Arthur L. Shipman, Jr., Hartford, with whom, on the brief, was Robert Ewing, Hartford, for named defendant.

Herbert I. Trask, Hartford, appeared for defendant Immanuel Congregational Church, Inc.

Before INGLIS, C. J., BALDWIN, O'SULLIVAN, and WYNNE JJ., and DALY, Superior Court Judge.

O'SULLIVAN, Associate Justice.

This action, brought by the plaintiff trustee for the construction of the will of Josephine H. Davis, comes to this court as a reservation upon a stipulated set of facts. The basic question deals with the disposition of excess income from the trust created by the testatrix.

The stipulated facts are these: Josephine H. Davis, a resident of Hartford, died testate on February 13, 1924, leaving neither spouse nor issue. Her will, which had been executed shortly before her death, was admitted to probate on February 26, 1924. The estate was subsequently settled, and on December 24, 1924, the final account of the executors was approved and allowed. On the same day, the plaintiff accepted the trusts created by article third of the will and, since then, has continued to act as trustee.

The will consists of four articles. By article first the testatrix directed the payment of debts and funeral expenses, and of taxes assessed against all of the legacies. In article second she set out numerous bequests, designating three corporations and twenty-four individuals as legatees. Among the latter were two sisters, Ruth Lewis and Mary Kimball; two nieces, Anne A. Hoxie and Ella H. Healy; five nephews, Frederick Lewis, Arthur Lewis, Charles Hoxie, George Hoxie and Earle Hoxie; and a grandniece, Josephine Hoxie. She also left legacies to the widows of two deceased brothers.

In article third ¹ the testatrix gave in trust to the plaintiff all of her property, including any lapsed legacies. The income derived from the fund was to be divided into two equal parts. One part was to be paid first to the testatrix' sister Ruth Lewis for life and thereafter to others, as recited in a paragraph bearing the heading 'A.' The other part was to be paid to the testatrix' sister Mary Kimball for life and thereafter to others, as recited in a paragraph headed 'B.' By a part of another paragraph, headed 'C,' the testatrix provided that '[w]hen the last survivor of the beneficiaries named or designated in paragraphs A and B of the third clause of this my last Will and Testament shall have died, I authorize, empower and direct the trustee to distribute the principal of said fund to the Hartford Hospital * * * and to the Immanuel Congregational Church, Incorporated * * * share and share alike.'

Of the beneficiaries named in paragraph A of article third, only Frederick Lewis survives. The plaintiff is paying to him two-quarters of the total income, to one of which he succeeded on the death of Ruth Lewis, and to the other on the death of the survivor of Ruth Lewis and Amy Lillibridge. All of the beneficiaries named in paragraph B have died, and the one-half of the income payable to them during their lives has been accumulating in the plaintiff's hands and is referred to herein as excess income. The plaintiff seeks answers to the questions recited in the footnote. ²

The parties are in accord that, under the existing conditions, there are three possible ways of disposing of the excess income: (1) It might be accumulated and added to the principal fund; (2) it might be paid to Frederick Lewis as the sole surviving life beneficiary; or (3) it might be regarded as intestate estate, the gift of it having failed. See Union & New Haven Trust Co. v. Sellek, 128 Conn. 566, 568, 24 A.2d 485, 140 A.L.R. 837.

We first take up the claim of the ultimate remaindermen, the Hartford Hospital and the Immanuel Congregational Church. They maintain that the excess income should go to the principal fund. Whether their position is sound depends primarily upon the testatrix' intent. Hoadley v. Beardsley, 89 Conn. 270, 280, 93 A. 535. Obviously, no serious difficulty as to the accumulation of income is encountered where a testator has expressed himself on the matter in unambiguous language, but such clarity of intent does not always occur. For this reason we have adopted the following rule: '[W]here the will discloses an intent that excess income shall accumulate, or its distribution as it accrues will be contrary to the scheme of the will, it should be permitted to accumulate, unless, indeed, such an accumulation would be invalid, * * * where the will discloses an intent that there shall be no accumulation of excess income or such an accumulation would be contrary to the scheme of the testator, or where the will discloses no intent either way, the excess income should be distributed to those entitled to it as it accrues.' New Haven Bank v. Hubinger, 117 Conn. 417, 423, 167 A. 914, 916; Stempel v. Middletown Trust Co., 127 Conn. 206, 216, 15 A.2d 305, 157 A.L.R. 657.

The will before us does not disclose an intent either way. It does not contain any express provision for the accumulation of excess income and for its eventual addition to the trust fund, and no argument carrying conviction can be advanced that the scheme of the will requires the trustee to augment the fund with such income. On the contrary, there is every indication that the testatrix completely overlooked the possible occurrence of excess income. This seems apparent from the elaborate manner in which she sought to allot all of the trust income to the many beneficiaries whom she remembered. A mere recital of parts of article third bears this out. Under paragraphs A and B of that article, the testatrix gave one-half of the income to her sister Ruth Lewis and the other half to her sister Mary Kimball. At the death of each sister, her share of the income was given in seriation to a number of life tenants in such a manner that, had they lived and died in the order in which the testatrix enumerated them, excess income from the trust would have been an impossibility. Thus, upon Ruth's death, her share of the income under paragraph A was to be divided into two equal parts, one going, in each instance for life, first to her son Frederick, then to his wife, Mary, and then to Amy Lillibridge, and the other part going, in similar fashion, first to Amy Lillibridge, then to Frederick Lewis, and then to his wife, Mary. In like manner, the testatrix in paragraph B attempted to dispose of the share of the income originally given to Mary Kimball, the testatrix' sister. Upon Mary Kimball's death, the income which she was to receive was to be given successively for life to Mary Lambert, Nellie Lambert and Nellie Belden. The manner in which the testatrix made Nellie Belden the ultimate life tenant under both paragraphs A and B manifests the testatrix' belief that this final life estate in the entire income was to be the last before the trust terminated. But, like all humans, the testatrix had no gift of prophecy by which she could forecast accurately the events which were to happen, including the fact that Nellie Belden was not to be the last survivor. It is clear, we believe, that the testatrix intended, but inadvertently failed, to dispose of all of the trust income.

As a further indication of a lack of intent on the part of the testatrix that any income should be accumulated, we note that in creating the trust she directed her executors to augment the fund by the addition of all lapsed legacies. The legacies to which she was thus referring were those given to the twenty-seven legatees named in article second. Some significance must be accorded to the fact that in disposing of the trust income, on the other hand, she made no comparable provision for the failure of a legacy of such income. Our conclusion is that accumulation of the income and its addition to the principal fund are unwarranted under the will.

We now turn to the claim of Frederick Lewis. He asserts that the trust created by article third is a single residuary trust; that the various beneficiaries thereunder were tenants in common; and that the intent of the testatrix, as shown by the absence of anything in the will to the contrary, was that the principal fund was not to be broken up or interfered with until all the beneficiaries had died. Accordingly, he contends that cross remainders among the various life tenants must be implied and that, since he is the sole survivor of all life beneficiaries of the trust, he is entitled, as a cross remainderman, to receive the excess income as long as he lives. See 140 A.L.R. 841, 844.

By classical definition, a cross remainder is a remainder limited after particular estates to two or more persons in several parcels of land, or in several undivided shares in the same parcel of land, in such a way that upon the determination of the particular estates in any of the parcels or undivided shares they remain over to the other grantees, and the reversioner or ultimate remainderman is not let in until the determination of all the particular estates. 1 Swift's Digest 99; 4 Thompson, Real Property (Perm.Ed.) § 2224; 2 Tiffany, Real Property (3d Ed.) p. 58, § 334; 33 Am.Jur. 539; 31 C.J.S., Estates, § 74, p. 92; Addicks v. Addicks, 266 Ill. 349, 352, 107 N.E. 580. A cross remainder may be created by the express language of a will or it may arise by necessary implication. 1 Swift's Digest 100.

Although a cross remainder, as defined, appears to be possible only when land is involved, there is at least one American case in which it was applied to personalty. Wachovia Bank & Trust Co....