Hartford Nat. Bank and Trust Co. v. Thrall

• Decision Date: 30 June 1981
• Citation: 184 Conn. 497,440 A.2d 200
• Court: Connecticut Supreme Court
• Parties: HARTFORD NATIONAL BANK AND TRUST COMPANY v. Julia S. THRALL et al.

Page 200

440 A.2d 200

184 Conn. 497

HARTFORD NATIONAL BANK AND TRUST COMPANY v. Julia S. THRALL et al.

Supreme Court of Connecticut.

Argued March 3, 1981.

Decided June 30, 1981.

Martin Wolman, Hartford, with whom, on the brief, was Ernest A. Inglis, Jr., Hartford, for plaintiff.

Ralph G. Elliot, Hartford, with whom was Anne E. Lupica, Hartford, for named defendant.

J. Noxon Howard, New Britain, with whom were Norman Rogers, Jr., Hartford, and, on the brief, Cornelius E. Clark, Jr., New Britain, for defendant Richard C. Hastings, Jr.

Jack Rubin, Hartford, with whom was Charles Stroh, Hartford, for defendants Florence H. Markowski and Edward Broder, Jr.

John C. Graham, Weatogue, for defendant Charles Spencer Hastings.

Before BOGDANSKI, C. J., and PETERS, HEALEY, ARMENTANO and DALY, JJ.

ARMENTANO, Associate Justice.

The plaintiff, formerly known as the Travelers Bank and Trust Company, brought this action seeking a declaratory judgment involving the interpretation of the language in a will terminating a testamentary trust administered by the plaintiff. The defendants are the potential remainderpersons of the assets of the estate. The parties have stipulated to the facts: Charles L. Spencer executed a will on July 24, 1916, and a codicil on May 13, 1920. Paragraph nine of the will contains the disputed language and is set out in its entirety in the footnote. ¹ The codicil language is not relevant to the issues in this case. Paragraph nine is actually made up of three parts. The first part provides for a life interest in the income produced by a trust funded by the bulk of Spencer's estate. The second part terminates the trust on the death of the last income beneficiary and provides for a distribution of the rest, residue and remainder of Spencer's estate to the children of the income beneficiaries. The last part provides for a contingent distribution in the event no children were born of the income beneficiaries.

Spencer died on September 21, 1921, and his will and codicil were subsequently approved and admitted to probate in the Probate Court for the district of Suffield. He was survived by a daughter, Lillian C. S. Broder; a son, Charles Luther Spencer, Jr.; a grandson, Spencer Goldthwaite, the son of a predeceased daughter, Julia Goldthwaite; and two other infant grandchildren, one the son of Broder and the other the daughter of Spencer, Jr. On October 5, 1921, Spencer, Jr., Edward Stuart Goldthwaite and the plaintiff duly qualified and were appointed co-trustees of the testamentary trust created by paragraph nine. Presently, the only remaining trustee is the plaintiff, which has served as a corporate trustee continuously since its appointment in 1921.

In accordance with the terms of the trust, the trustees initially distributed the income earned from the principal to the income beneficiaries Broder, Goldthwaite, and Spencer, Jr. After Goldthwaite's death in 1931, leaving no issue, the trustees divided his share between Broder and Spencer, Jr. Upon the death of Spencer, Jr., in 1960, his share of the income was paid to his only child, the defendant Julia S. Thrall. There is no dispute over the distribution of the income generated by the corpus of the trust. On August 22, 1979, the death of Broder, Spencer's last living child, terminated the trust. Broder was survived by her four children, namely: the defendants Charles S. Hastings; Richard C. Hastings, Jr.; Florence H. Markowski; and Edward Broder, Jr. (Broder's four children). By the terms of the will, the plaintiff is obligated to distribute the estate assets. The instructions for distribution, as set forth in paragraph nine, provide as follows: "Upon the death of my said children (Broder and Spencer, Jr.) and of my said grandchild (Goldthwaite) said trust shall terminate, and I do then give, devise and bequeath said the rest, residue and remainder of my estate to their children, if any they have, as a class, to be divided among them per stirpes, share and share alike, to them and to their heirs forever." (Emphasis added.)

There is no dispute that the entire corpus of the estate is to be shared by Thrall and Broder's four children. The question is what share each is to receive. Broder's four children claim that it should be distributed in five equal shares to each of them and Thrall. Thrall argues that the assets should be divided into two equal parts; one part for her and the other part to be equally shared by Broder's four children. The plaintiff's position is neutral.

The trial court, at the request of and with the consent of all the parties, reserved two questions for the consideration and advice of this court. Practice Book §§ 3133 and 3134. We have paraphrased them as follows: (1) Should the assets of the estate be distributed to the remainderpersons with one-half of the assets going to Thrall and the other half of the assets being divided equally among Broder's four children? and (2) Should the assets of the estate be distributed to the remainderpersons with one-fifth of the assets going to Thrall and each of Broder's four children?

The doubt as to the distribution arises from the testator's use in the same dispositive sentence of the three phrases "to their children, if any they have, as a class"; "to be divided among them per stirpes"; and "share and share alike." There is no question as to the meaning of the phrase "to them and to their heirs forever." It is made up of words of limitation, not of purchase. Hartford-Connecticut Trust Co. v. Gowdy, 141 Conn. 546, 553, 107 A.2d 409 (1954).

" 'The cardinal rule of testamentary construction is the ascertainment and effectuation of the intent of the testator, if that be possible. If this intent, when discovered, has been adequately expressed and is not contrary to some positive rule of law, it will be carried out.' Swole v. Burnham, 111 Conn. 120, 121, 149 A. 229 (1930). 'The most inflexible rule of testamentary construction and one universally recognized is that the intention of the testator should govern the construction, and this intention is to be sought in the language used by the testator in the light of the circumstances surrounding and known to him at the time the will was executed.' Union & New Haven Trust Co. v. Ackerman, 114 Conn. 152, 157-58, 158 A. 224 (1932); Hartford-Connecticut Trust Co. v. Thayer, 105 Conn. 57, 64, 134 A. 155 (1926); Catto v. Plant, 106 Conn. 236, 237, 137 A. 764 (1927)." Reaney v. Wall, 134 Conn. 663, 666-67, 60 A.2d 505 (1948). In seeking the testator's testamentary intent, "the court looks first to the will itself .... It studies the will as an entirety. The quest is to determine the meaning of what the (testator) said and not to speculate upon what (he) meant to say ...." Kimberly v. New Haven Bank N.B.A., 144 Conn. 107, 113, 127 A.2d 817 (1956); Connecticut Bank & Trust Co. v. Lyman, 148 Conn. 273, 278-79, 170 A.2d 130 (1961).

With these rules in mind, we have examined the meaning of each of the three phrases which create the doubt as to the proper distribution of the estate assets.

The first phrase is "to their children, if any they have, as a class." There is no dispute that the pronoun "their" refers to the income beneficiaries. Also, at the time the testator executed his will, the proposed income beneficiaries had no children. This explains his use of the words "if any they have." Since children were subsequently born and living at the testator's death, these words lose their meaning. As a result, we construe the phrase as follows: "to the income beneficiaries' children as a class."

There is no doubt that this phrase indicates a gift to a class made up of the children of the income beneficiaries. Hartford-Connecticut Trust Co. v. Beach, 100 Conn. 351, 359, 123 A. 921 (1924); Mitchell v. Mitchell, 73 Conn. 303, 307, 47 A. 325 (1900); 3 Powell, Real Property P 352; 1 Simes & Smith, Law of Future Interests (2d Ed.) § 101. The children surviving the testator received a vested remainder in the assets of the estate subject to open so as to include after born children of the income beneficiaries. Hartford National Bank & Trust Co. v. VonZiegesar, 154 Conn. 352, 357-58, 225 A.2d 811 (1966); Chase National Bank v. Guthrie, 139 Conn. 178, 181, 90 A.2d 643 (1952); 1 Simes & Smith, Law of Future Interests (2d Ed.) §§ 114, 146; 2A Powell, Real Property P 276. The minimum membership of the class was determined when the testator died. Hartford National Bank & Trust Co. v. Birge, 159 Conn. 35, 41, 266 A.2d 373 (1970); Hartford-Connecticut Trust Co. v. Gowdy, supra, 141 Conn. 554-55, 107 A.2d 409; 2 Simes & Smith, Law of Future Interests § 654; 3 Powell, Real Property P 365. It closed, by the rule of convenience, at the death of the last income beneficiary because it was at that time that the members of the class were entitled to possession and enjoyment of their gift; their vested remainder subject to open became a present, possessory interest. Stinson v. Palmer, 146 Conn. 335, 336, 150 A.2d 600 (1959); Mitchell v. Mitchell, supra; 2 Simes & Smith, Law of Future Interests (2d Ed.) § 634; 3 Powell, Real Property P 364. The creation of a class gift by a testator means distribution is made on a per capita basis. Under such a distribution, the trust assets are divided into as many shares as there are members of the class and one of these shares is allocated to each member. Hartford-Connecticut Trust Co. v. Beach, supra, 100 Conn. 359-60, 123 A. 921; Hoadley v. Beardsley, 89 Conn. 270, 283, 93 A. 535 (1915); 3 Powell, Real Property P 368; Restatement, 3 Property §§ 300 and 301.

The first phrase instructs the plaintiff to distribute the estate assets to a class comprised of the income beneficiaries' children. At the time of the closing of the class, the membership consisted of Thrall and Broder's four children. Since distribution to class members is per capita, the first phrase, standing alone, mandates a division of the estate assets into five...