Hartford Trust Co. v. Wolcott

• Citation: 85 Conn. 134,81 A. 1057
• Court: Connecticut Supreme Court
• Decision Date: 05 January 1912
• Parties: HARTFORD TRUST CO. v. WOLCOTT et al.

81 A. 1057

85 Conn. 134

HARTFORD TRUST CO. v. WOLCOTT et al.

Supreme Court of Errors of Connecticut.

January 5, 1912

Case Reserved from Superior Court, Hartford County; William H Williams, Judge.

Suit by the Hartford Trust Company against William W. Wolcott and others to determine the construction of the will of Lucy A Noyes, deceased. Case reserved, on the admitted allegations of the complaint for the advice of the Supreme Court. The superior court advised.

Charles M. Joslyn, for plaintiff.

John T. Robinson and Francis W. Cole, for William W. Wolcott and others. John H. Buck, for Henry P. Stearns and others. Edward L. Steele, for estate of Lucy A. Noyes.

THAYER, J.

The testatrix died in September, 1884, leaving a will, of which the fifth clause, out of which arise all the questions upon which our advice is sought, reads as follows: " Fifth. I give and bequeath to the children of my sister Emily Wolcott the sum of thirty thousand dollars ($30,000.) the same to be equally divided among those living at the time of my decease or paid to the survivor of them, except that I give such portion as would under this bequest go to Horace Wolcott to my executor and executrix in trust to pay the income thereof to him semi annually during his life and at his death to pay and deliver the principal of said trust fund to such of his legal representatives as are related to me by blood." Horace Wolcott and the defendants William W. and Abiathar R. Wolcott were the three children of the sister Emily Wolcott. They were in life at the time the will was made, and survived the testatrix. Horace died in September, 1910, without issue. His two brothers are his sole heirs at law. By a residuary clause of the will Zayde E. Bancroft, a sister-in-law of the testatrix, and Dr. Henry P. Stearns, who was not a relative of the testatrix, were made her residuary legatees and devisees, and the executor and executrix of the will. The questions for determination are: (1) " Is the trust over under the fifth clause of the will valid, and are the said William W. Wolcott and Abiathar R. Wolcott entitled to receive the principal of said trust fund?" (2) In the event that the trust over is void, does the trust fund go to the administrator de bonis non of the testatrix as intestate estate or as testate estate, to the representatives of the residuary devisees and legatees named in the will?

All parties to this proceeding agree that by the term " legal representatives" the testatrix intended the heirs at law of Horace Wolcott, and not his executors or administrators, and it is apparent that this must be so, for she directs that the trust fund shall be paid to such of them as are related to her by blood. She would not have used this language had she been referring to executors or administrators.

The remainder thus attempted to be given to the heirs of Horace Wolcott was a contingent one. It could not vest until his death. Until that event, it could not be known whether he would leave heirs who were related to the testatrix by blood; and, if he left such heirs, their names and number, and consequently the number and size of the shares to be distributed, could only be determined at his death. It was possible, manifestly, that his heirs might be children of persons not in being at the date of the testatrix's death. This possibility rendered the attempted gift of this remainder void as within the prohibition of the statute of perpetuities in force when the will took effect. Wheeler v. Fellowes, 52 Conn. 238, 244; Tingier v. Chamberlin, 71 Conn. 466, 469, 42 A. 718. The fact that, as things turned out, the heirs of Horace were his brothers, relatives by blood of the testatrix, and persons who were in being at the time of her decease, cannot affect the construction of the will. Bartlett v. Sears, 81 Conn. 34, 41, 70 A. 33.

It is claimed that the statute of perpetuities is inapplicable to this case, because, as claimed, the term " his legal representatives" is to be taken as referring to those who at the death of the testatrix rather than at the death of Horace would be his next of kin of the blood of the testatrix. This is not the natural construction of the language used. Such a construction might carry the fund to collateral heirs, although there were children of Horace born after the death of the testatrix. There is nothing in the facts appearing in the record to call for or warrant such a construction. On the...