Hoops v. Stephan

• Decision Date: 06 July 1944
• Citation: 131 Conn. 138,38 A.2d 588
• Court: Connecticut Supreme Court
• Parties: HOOPS et al. v. STEPHAN et al.

131 Conn. 138

38 A.2d 588

HOOPS et al.

v.STEPHAN et al.

Supreme Court of Errors of Connecticut.

July 6, 1944.

Case Reserved from Superior Court, New Haven County; Wynne, Judge.

Action by Martha K. Hoops and others, trustees, against Adelaide M. Stephan and others for the construction of the last will and codicil of William Frederick Hoops, reserved by the superior court in New Haven County for the advice of the Supreme Court of Errors.

Questions answered.

L. Horatio Biglow, for plaintiffs.

James W. Cooper and Crenna Sellers, both of New Haven, for defendants Martha K. Hoops et al.

George E. Beers and William L. Beers, both of New Haven, for defendants Adelaide M. Stephan et al.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

BROWN, Judge.

In this action for the construction of the last will and codicil of William Frederick Hoops, these material facts are stipulated: The testator died June 16, 1941, leaving his widow, Martha K. Hoops, who is sixty-eight years old, and as his only heirs-at-law two daughters, Adelaide M. Stephan and Marion H. Hull, and two sons, Ernest W. Hoops and Edwin F. Hoops, children of his first wife who died, and one daughter, Ethel, child of his widow. Martha married the testator when the children by his first wife were quite young and cared for them in the home until they grew up. All of the five children are now between forty and fifty years of age. July 14, 1941, Edwin was declared incompetent and Ethel was appointed his conservator.

By his will, executed January 20, 1941, the testator, after providing for the payment of his debts and for three relatively minor gifts, including one of ‘two parcels of sweet meadow’ to his wife Martha, by paragraph five left her the life use of a twenty-five acre tract of land and his summer residence thereon together with the furniture, with remainder to his three daughters or the survivor or survivors of them in equal shares. By paragraph six he devised the residue of his property to the plaintiffs in trust: First, to ‘apply the net income and the principal * * * to pay the taxes, charges and repairs' on the summer residence and real estate during Martha's life use; second, to divide the balance of the net income into two equal parts and to apply one part so far as in their discretion they should deem necessary for Edwin's proper support, the surplus during his lifetime or all of it should be predecease her to be paid over to Martha during her life, and should she predecease him the surplus during his lifetime to be paid over to the testator's surviving daughter or daughters in equal shares; third, to pay over the other part of Martha for life and upon her decease leaving Edwin surviving to apply the amount in their discretion necessary for his proper support, any surplus to be paid over to the testator's then surviving daughter or daughters in equal shares; and fourth, upon the death of the survivor of Martha and Edwin the trust to terminate and the principal and any undistributed income to be paid to the testator's then surviving daughter or daughters in equal shares. By paragraph nine he gave to the trustees absolute discretion in the exercise of certain powers in dealing with the trust estate and in the investment of its funds which are stated in a series of sub-paragraphs designated (a) to (n).

By his codicil, executed June 5, 1941, the testator provided: ‘I hereby revoke Paragraph Sixth of said will as I wish to make sure, as far as possible, that the income from my residuary estate will be sufficient to provide for the comfortable support and maintenance of my wife, Martha K. Hoops, and my son, Edwin F. Hoops, during their lives, and I substitute for said paragraph the following:’ The codicil then provides by a substituted paragraph sixth that in the event Martha and Edwin survive the testator, first, the trustees shall not only pay the taxes, charges and repairs on the real estate of the summer residence as the will had specified out also those on the ‘furniture and equipment’ and in addition the ‘mortgage interest, if any, * * * during the lifetime of my said wife, or until the property is disposed of.’ It then goes on to reiterate in substance the further provisions of paragraph six. The one further material provision of the codicil is the addition to paragraph nine of a subsection (o): ‘If, in the discretion of my said Trustees, the income provided for in Paragraph Sixth of my said will shall be insufficient to provide for the comfortable support and maintenance of my said son Edwin and my said wife, Martha K. Hoops, I authorize and direct my said Trustees to sell and convey the whole or any portion of my estate and to pay to my said son and wife such sum or sums from the proceeds thereof as shall from time to time, in the discretion of my said Trustees, be necessary to secure to my said son and wife such comfortable support and maintenance. This power shall vest in any successor of the Trustees hereinbefore named.’

The plaintiffs have qualified as trustees under the will and the present value of the trust estate is $103,326.57. The estimated net income available each year for the support and maintenance of Edwin and Martha is from $1800 to $2300 less than the sum required for that purpose. At the time of the testator's death, Martha owned or was entitled to a house and land in Madison, of the assessed value of $3100, which the testator had given her November 12, 1935; the two parcels of sweet meadow devised to her by the will, of the aggregate assessed value of $1050; a joint survivorship savings bank account of $1539.89 standing in her name and that of the testator; another savings bank account of $2084.82 of her own funds in her own name; and the proceeds of a $10,000 insurance policy on the testator's life which was taken out by him and of which she was beneficiary. At the present time she still owns the two parcels of sweet meadow. On September 14, 1942, she conveyed the Madison property to Ethel as a gift. The $3000 balance of the savings bank accounts is in a joint survivorship account standing in the names of Martha and Ethel. The proceeds of the life insurance policy have been invested in United States bonds, to the amount of $5,975 in the names of Martha ‘or’ Ethel and to the amount of $4000 in the name of Ethel. Edwin's only separate property is a $4855.50 balance of the proceeds of a $5000 policy of insurance on the testator's life which the testator took out and in which he named Edwin beneficiary. Adelaide, Ernest, Marion and Ethel each received $3752.06 on the death of the testator, proceeds of insurance policies upon his life which he had taken out and in which he had named them beneficiaries. Ethel is unmarried and makes her home with her mother in the house in Madison which the latter deeded to her.

The defendants Adelaide, Ernest and Marion contest the trustees' right to invade trust principal for the support and maintenance of the life beneficiaries, the burden of their contention being that it cannot be resorted to until the beneficiaries' own and separate income and principal have been exhausted. The fundamental question determinative of those submitted for the advice of this court is, what effect does the fact that the life beneficiary has individual resources in the nature of income or property have upon the right and duty of the trustees to invade the trust principal pursuant to subsection (o) of the codicil? The answer to this question depends upon the ascertained intent of the testator, and this intention ‘may be gathered not only from within the instrument itself, but also from the circumstances which surrounded the testator when the will was made, including the situation and condition of his estate, his relations to his family and beneficiaries, and their situation and condition. The construing court will put itself, as far as possible, in the position of the testator, in the effort to construe the uncertain language used by him in such a way as shall, conformably to the language, give force and effect to his intention.’ Fritsche v. Fritsche, 75 Conn. 285, 287, 53 A. 585; New Britain Trust Co. v. Stoddard, 120 Conn. 123, 126, 179 A. 642. Furthermore, in ascertaining the intent which is expressed in a certain provision, the court reads the will as a whole and if it discloses...