Hartford Nat. Bank & Trust Co. v. Birge

• Decision Date: 06 January 1970
• Parties: HARTFORD NATIONAL BANK AND TRUST COMPANY, Trustee (ESTATE of Sylvester C. DUNHAM) v. Sylvia D. BIRGE et al.
• Court: Connecticut Supreme Court

Page 373

266 A.2d 373

159 Conn. 35

HARTFORD NATIONAL BANK AND TRUST COMPANY, Trustee (ESTATE of Sylvester C. DUNHAM) v. Sylvia D. BIRGE et al.

Supreme Court of Connecticut.

Jan 6, 1970.

Laurence O. Pratt, Jr., Hartford, for plaintiff.

Valentine J. Sacco, Hartford, for defendant Paul Volpe, administrator d.b.n., c.t.a. (Estate of Donald A. Dunham, Jr.), and others.

John D. Garrison, Jr., Hartford, for defendant Leslie D. Rohan and others.

Ralph G. Elliot, Hartford, with whom, on the brief, was Henry P. Bakewell, Hartford, for named defendant.

Before KING, C.J., and HOUSE, COTTER, THIM and RYAN, JJ.

KING, Chief Justice.

This is a reservation, on an agreed statement of facts, brought by the plaintiff as trustee, seeking the construction of certain trust provisions in the last will and testament of Sylvester C. Dunham. The testator died, a resident of Hartford, on October 26, 1915, leaving a will dated September 13, 1915. He was survived by his wife, Mary A. Dunham, by his son, Donald A. Dunham, and by Donald's two yound children, Sylvia (now Mrs. Sylvia (Dunham) Birge), who is still alive, and Donald A. Dunham, Jr., who was later killed in World War II on August 1, 1944.

In Article I of the will all real estate, all personal property in the residence in Hartford, twenty-five shares of stock in The Travelers Insurance Company, and $100,000 were given to the testator's wife, outright and absolutely.

In Article II, the son, Donald, was bequeathed, outright and absolutely, twenty-five shares of stock of The Travelers Insurance Company and $50,000.

In Article III, relatively small, although substantial, bequests were made to Donald's wife, to the testator's brother, to his sister-in-law and to two friends, each conditioned on the beneficiary surviving the testator.

In Article IV of the will, a trust fund of $20,000 apiece was established for each of the two grandchildren, Sylvia and Donald, Jr., under the terms of which each was to receive that income until respectively attaining the age of twenty-five when each was to receive, and in fact did receive, the principal.

In Article V, a trust in the principal sum of $150,000 was established, the income to be paid to the testator's wife for her life, and at her death one-half of the principal was to be paid outright and absolutely to the testator's son, Donald, if he was then living (as he was), and the income from the other half was to be paid to Donald during his life.

Article VI, which is the clause in controversy, provided as follows: 'After the death of both my wife and my son, whatever may remain of said trust fund shall be divided by said trustee into as many shares as he, my son, may leave children including posthumous children if any, and one share shall vest in and shall be delivered by said trustee absolutely to each or to the guardian of any who may be under the age of twenty-one years.'

Article VII gave the rest and residue, including any lapsed legacies, to the testator's widow, outright and absolutely. $The testator's widow died December 4, 1931. His son, Donald, died March 16, 1967, and thus distribution of the remainder of the trust then became necessary. Donald's only children were Mrs. Birge and Donald, Jr., who, as already noted, had died in 1944. Donald, Jr., was survived by his widow, Charlotte K. Dunham (afterwards, by a subsequent marriage, Charlotte K. Cutrer) and three daughters, Mrs. Leslie Brook (Dunham) Rohan, Mrs. Donna Suzanne (Dunham) Jones and Mrs. Priscilla Leith (Dunham) Massengale. Donald, Jr., left a will making his wife sole beneficiary of his entire estate. She died April 2, 1964, leaving a will making her children sole beneficiaries of her entire estate.

It is agreed by all parties that Mrs. Birge, under Article VI, as one of Donald's two children, in any event and under any interpretation takes one-half of the remainder of the trust estate created under Article V.

Thus, the sole question is whether Mrs. Birge is entitled to the other half of the trust remainder or whether it vested in Donald, Jr., and, through the operation of his will and that of his wife, afterwards Mrs. Cutrer, would pass equally to her four children, three of whom were also the children of Donald, Jr., and one of whom (Jeffrey H. Cutrer) was her child by a subsequent marriage.

Mrs. Birge's claim to the entire trust remainder is based on the provision that, upon the death of the survivor of the testator's wife and his son, Donald, the trust estate was to 'be divided * * * into as many shares as he, my son, may leave children including posthumous children if any, and one share shall vest in and shall be delivered by said trustee absolutely to each'. Mrs. Birge claims that since Donald, Jr., predeceased his father, his father could not be considered as having died 'leaving' Donald, Jr., as a child, since, as she claims, one cannot 'leave' a child already dead, nor could the language 'shall vest in and shall be delivered * * * to' apply to a child already dead. Thus, she claims that she alone qualified and that the estate of Donald, Jr., did not and could not qualify to share in the remainder interest in the trust. The case upon which she seems especially to rely is Hartford National Bank & Trust Co. v. VonZiegesar, 154 Conn. 352, 359, 225 A.2d 811, a case decided in December, 1966.

In further support of her claim, she points to the fact that in Article IV, in making express provision for his grandchildren, Sylvia and Donald, Jr., the testator conditioned the bequest of the principal to each on survival to the age of twenty-five and made no provision giving the parent's share to children (who would be great grandchildren of the testator) in the event that either grandchild died while in receipt of the trust income but before attaining the age of twenty-five.

Mrs. Cutrer's children join the administrator d.b.n., c.t.a. of Donald, Jr., in claiming that the other half of the trust remainder should be distributed to the estate of Donald, Jr. It is their claim that, upon the death of the testator, the remainder interest in the trust, upon the termination of the life estates of Mrs. Dunham and of Donald, was given to Donald's children; that this was a class gift which embraced Sylvia and Donald, Jr., who each survived the testator, and which vested at the time of the testator's death; that had Donald had other children the class would have opened to admit them but that, since in fact he left no other children, Sylvia's and Donald, Jr.'s vested interests persisted, undiluted, up until the termination of both antecedent life estates upon the death of Donald in 1967.

In deciding between the foregoing two basic conflicting claims, that of Mrs. Birge, on the one hand, and that of the personal representative of the estate of Donald, Jr., on the other hand, certain fundamental principles must be kept in mind.

In the first place, we are concerned with the intent of the testator as expressed in the will as a whole, in the light of the circumstances surrounding him at the time the will was executed. Connecticut Bank & Trust Co. v. Hills, 157 Conn. 375, 379, 254 A.2d 453; Connecticut Bank & Trust Co. v. Lyman, 148 Conn. 273, 281, 170 A.2d 130.

It is obvious from a consideration of the will as a whole that the testator's concern was with his rather immediate family. The will contains no gift to any charitable organization. With the exception of relatively small bequests to three friends, to his brother, to his sister-in-law and to his daughter-in-law, each conditioned on the beneficiary surviving him, everything is given to the testator's wife, his children or his grandchildren. It is also clear from the provisions of Article IV that the testator was sufficiently interested in his grandchildren, Donald, Jr., and Sylvia, to create equal $20,000 trusts for each. There is nothing in the will, considered as a whole, indicative of any intent to establish an inequality between Donald, Jr., and his sister, Sylvia. This is reinforced by the fact that Donald, Jr., was a newborn infant at the time the will was drawn and Sylvia was a little girl of five or six. There would be no reason for the testator's having any aversion to either child.

It is an accepted principle of construction that the law favors the early vesting of estates and that, unless the will discloses a contrary intention, an early vesting will be presumed to have been intended. Hartford National Bank & Trust Co. v. VonZiegesar, 154 Conn. 352, 358, 225 A.2d 811.

It is also an accepted principle of construction that, unless the will discloses a contrary intent, a gift...