In re Carter's Will

• Decision Date: 06 October 1926
• Citation: 134 A. 581
• Parties: In re CARTER'S WILL. BROWN v. STRONG.
• Court: Vermont Supreme Court

134 A. 581

In re CARTER'S WILL.BROWN

v. STRONG.

Supreme Court of Vermont Windsor.

Oct. 6, 1926.

Appeal from Probate Court, Windsor County; Frederick C. Southgate, Judge.

Proceeding by Laura Carter Brown for the construction of the will of William S. Carter, deceased, opposed by William G. Strong. From a decree of the probate court decreeing distribution, Laura Carter Brown appeals. Reversed and remanded.

Argued before POWERS, SLACK, and FISH. JJ., and MOULTON and GRAHAM, Superior Judges.

Stanley C. Wilson and Hale K. Darling, both of Chelsea, for appellant.

Stickney, Sargent & Skeels and Olin M. Jeffords, all of Ludlow, for appellee.

GRAHAM, Superior Judge. This is an appeal from a decree of the probate court within and for the probate district of Hartford decreeing distribution of the principal and accumulations of a trust fund created by the will of William S. Carter. After making gifts of $20,000 each to his wife and son, by the third clause of his will the testator made the following provision:

"Third. It is further my will, that after the legatees before named shall have received the said sums of twenty thousand dollars each, as before provided, that there shall be paid into the hands, and possession of the trustees hereinafter named, the sum of ten thousand dollars ($10,000) to be by them held in trust, in and for the purposes and use, and in the manner provided.

"1st. To pay and account to the before named Mary Elisabeth, and William T. Carter, the annual income, rental, interest or profits of said sum before mentioned, yearly, in equal parts or portions, for and during the respective lives of each of them, and to pay to the survivor of them, the whole of all said income rental, interest or profits, during the time he or she shall survive the other, subject to the conditions and restrictions, hereinafter contained.

"2nd. In the event the said William T. Carter shall decease before his mother the said Mary Elisabeth, he the said William leaving a widow and issue, or either of them, surviving him, then and in that case the trustee, are to pay over and account to said widow and children, the part or portion that is above mentioned to be paid to said William T. unless the said William shall direct by his will, that the whole of said fund or portion to be paid annually to him as before mentioned, shall be paid to his issue alone, instead and in the place of his widow and issue.

"3rd. After the decease of both my widow the said Mary Elizabeth and my son the said William T. the fund remaining in the hands of the trustees is to descend and to be divided to and among my heirs at law.

"And in the event that my son shall arrive at the age of thirty-five years of age, and live until he shall fully attain that age the trustees hereby authorized and empowered to fully complete and determine this trust, by paying over and accounting to the my said heirs at law for the full amount of the fund and property remaining in their hands and possession, if in their opinion and judgment, it shall be for the best interest and benefit of all persons, to be benefited hereby, but in the event that said trust is determined, as last provided, my said wife is to receive one-half of or portion of said fund and property, in her own right, to be by her held as her own property without any claim on the part of any person whomsoever."

The agreed facts, deemed essential to the determination of the question presented, are these:

William S. Carter died October 3, 1873, aged 49 years, leaving his will dated June 24, 1872, which was duly proved and allowed in probate court on December 12, 1873. The testator was survived by his widow, Mary Elisabeth Carter, who died June 17, 1909, aged 86 years, and one child, William Thomas Carter, who died without issue April 2, 1925, aged 74 years. The next of kin of the testator at the time of his death, if he had left no issue, would have been a brother, Thomas S. Carter, a sister, Laura Carter Barron, and Laura Wolcott, who was the only issue of Mary Carter Wolcott, a sister of the testator, who had predeceased him. The said Thomas S. Carter died without issue in 1910. The said Laura Carter Barron died in 1890 leaving three children, Laura A. Barron, Osie B. (Barron) Landers, and Frank Barron, each of whom predeceased the said William T. Carter. The said Osie left as her only issue Laura C. (Landers) Brown, and said Frank left a son and only issue, F. Carter Barron. The last named, Laura and F. Carter, are living. The said Laura Wolcott (Reding by marriage) died without issue in 1916.

William T. Carter at no time was able to take sole care of his property. From about the age of 30 years until his death he was confined in a hospital for the insane. He never married.

The trust fund here in question was cared for by trustees until the date of the death of William T. Carter, after which the trustees rendered to the probate court their final account which was duly allowed, and thereupon said trustees were ordered to pay said fund with any and all accumulations to the legal representative of William T. Carter. The appellants contend that this fund should have been decreed to the estates of Thomas S. Carter, Laura Carter Barron, and Laura Wolcott, who at the time of the death of the testator were his heirs at law, excluding the son, William T. Carter. This presents the single question: Did the testator intend to exclude his son from the class described as "my heirs at law"?

The well-established and cardinal rules of construction are: That the intention of the testator, so far as it may be legally carried out, is to govern. That the law favors the early vesting of estate and presumes in favor of the vesting of remainders in interest on the death of the testator, if the language used is consistent with an intention to postpone the enjoyment only. That this presumption is so favorably regarded that no estate will be held contingent unless positive terms are employed in the will indicating a contrary intention. In re Will of Mansur, 98 Vt. 296, 298, 127 A. 297, and cases there cited. That if futurity is annexed to the time of payment only, the legacy vests immediately. In re Will of Mansur, 98 Vt. 296, 299, 127 A. 297; In re Robinson's Estate. 90 Vt. 328, 333, 98 A. 826. That a gift of personalty to "heirs" or "lawful heirs," or "heirs at law," whether to one's own heirs or to the heirs of another, is primarily to be held to be those who would be entitled to take under the statute of distributions, and to indicate, when there are no words in the will showing that the testator used the word "heirs" in a different sense, that they are to take in the same manner and in the same proportions as though the property had come to them as intestate's estate of the person whose heirs they are called. In re Irish's Will, 89 Vt. 56, 59, 94 A. 173, Ann. Cas. 1917C, 1154; Hodges v. Phelps, 65 Vt. 303, 26 A. 625. Applying these rules to the language of this will, it is clear that the testator intended, and we accordingly hold, that the remaindermen took a vested interest on the testator's death, and that the persons to whom the limitation over is made, answering the description "my (the testator's) heirs at law," are to be ascertained as of the time of the death of the testator, and not at the termination of the particular estate. See In re Tucker's Will, 63 Vt. 104, 21 A. 272, 25 Am. St. Rep. 743; Bullock v. Downes (1860) 9 H. L. Cas. 1,11 Eng. Reprint, 627; Lee v. Lee, 1 Drew. & S. 85, 62 Eng. Reprint, 310. This is the universally recognized rule in the absence of clear and unambiguous indications of a different intention, derived from the context of the will read in the light of the surrounding circumstances. See 33 L. R. A. (N. S.) p. 2, note 2; 13 A. L. R. at page 616, where the cases are collected and discussed.

Thus far the parties are in agreement, and no claim otherwise is made in the briefs or argument of counsel. The appellant contends that, inasmuch as the son. William T., was the sole prospective heir of the testator at the time the will was made, and was his sole heir at law at his death, the testator intended to exclude him from the class ("my heirs at law")...