Kimberly v. New Haven Bank N.B.A.

• Citation: 127 A.2d 817,144 Conn. 107
• Parties: Warren KIMBERLY et al. v. The NEW HAVEN BANK N.B.A., Trustee (Estate of Martha K. Lines), et al. Supreme Court of Errors of Connecticut
• Decision Date: 04 December 1956
• Court: Supreme Court of Connecticut

Page 817

127 A.2d 817

144 Conn. 107

Warren KIMBERLY et al. v. The NEW HAVEN BANK N.B.A., Trustee (Estate of Martha K. Lines), et al.

Supreme Court of Errors of Connecticut.

Dec. 4, 1956.

Nicholas B. Eddy, Winsted, for the plaintiffs.

Charles M. Lyman, New Haven, with whom was James J. Corrigan, New Haven, for the defendant The New Haven Bank N. B. A., administrator c.t.a. of the estate of Mabel S. Lloyd.

Curtiss K. Thompson, New Haven, pro se as guardian ad litem, with whom was Joseph J. Mager.

Thomas F. Wall, Torrington, with whom, on the brief, was Robert A. Wall, Torrington, for the defendant Ruth A. Surdam.

I. Gordon Colby, Jr., New Haven, appeared for the named defendant but did not argue the cause.

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

DALY, Associate Justice.

The plaintiffs appealed to the Superior Court from an order and decree of the Probate Court for the district of New Haven ascertaining the distributees of a trust created under the will of Martha K. Lines. All of the parties requested the Superior Court to reserve the case for the advice of this court upon a stipulated set of facts. The interests of all the direct and collateral descendants of the testatrix that are known to any of the parties are represented.

These material facts are stipulated: The testatrix died on October 29, 1902, at the age of eighty-two years, leaving a will dated January 16, 1902. The pertinent portions of the will are printed in the footnote. ¹ The testatrix' father and mother William and Ruth A. N. Kimberly, had died before 1902. In 1896, the testatrix had finished and caused to be printed a genealogical chart of the Kimberly family. She had compiled the data on the last four generations over a period of several years. Her husband, Augustus Lines, from whom she had inherited substantially all of the property she owned at the time of her death, had died in 1887. Her two children had predeceased her. One of them had married James H. Rowland, the father of Mabel S. Lloyd and Stuart L. Rowland. The only issue of the testatrix who survived her were these two grandchildren, who were the two life tenants named in her will. The testatrix had eleven brothers and sisters, eight of whom predeceased her. Five of those eight died without issue. Harriet N. K. Bostwick, Eliza K. Morehouse and William H. Kimberly, the other three of the eight sisters and brothers of the testatrix who died before her, left children who were living at her death. The testatrix' brothers Gilead, James and George survived her and left descendants. George was a contingent beneficiary of part of the income of the residuary trust created by the will. These three brothers died before the trust terminated on June 2, 1953, the date of death of Mabel S. Lloyd. Stuart L. Rowland, who was born on August 19, 1878, died unmarried on November 10, 1934. His sister, Mabel S. Lloyd, was his sole heir at law. He left no estate. Mabel, who was born on August 20, 1879, left no surviving issue. Her husband survived her.

Leonard Bostwick, who was named executor and trustee in the will, is now deceased and The New Haven Bank N. B. A. is the duly qualified and acting successor trustee. The amount of the trust when it was originally turned over to the trustee in 1903 was $31,888.19. After the death of the last surviving life tenant, the successor trustee filed an account showing a balance of $72,366.53 on hand, subject to payment of the remaining administration expenses, and asked for an order of distribution. The Probate Court found that the remaindermen, beneficiaries and distributees of the trust estate are the following heirs at law of the testatrix: Gilead Kimberly, James Kimberly and George D. Kimberly, brothers of the testatrix; Mary R. K. Baldwin, Harriet Kimberly, Hattie K. Del Fosse and Frank W. Kimberly, nieces and nephew of the testatrix, being the children of a deceased brother, William H. Kimberly; Leonard Bostwick and Harriet B. Patten, nephew and niece of the testatrix, being the children of a deceased sister, Harriet N. K. Bostwick; and Mary L. M. Lines, a niece of the testatrix, being the daughter of a deceased sister, Eliza K. Morehouse. Distribution was ordered to be made to these persons or to the estates of any of them who are deceased.

The court reserved for our advice the question stated below. ² The plaintiffs are grandchildren of James Kimberly, a brother of the testatrix who survived her. He died on September 2, 1917, leaving a son, James W. Kimberly, and a daughter, Ruth A. Surdam. By his will all of his property was given to his daughter, and nothing was left to his son, who died in 1918 and was the father of the plaintiffs. The plaintiffs claim that the testatrix intended, by her use of the words 'my legal heirs' in paragraph 6 of her will, to have take as remaindermen those persons determined to be her heirs at the termination of the last life interest, that of Mabel S. Lloyd, on June 2, 1953. The administrator c.t.a. on the estate of Mabel S. Lloyd contends that the intention of the testatrix was that the trust estate should go to the estates of Stuart L. Rowland and Mabel S. Lloyd. Other parties claim that the trust estate should be distributed, as ordered by the Probate Court, to the heirs of the testatrix as determined at the date of her death, excluding, however, her grandchildren Stuart L. Rowland and Mabel S. Lloyd.

The cardinal rule to be followed in construing the will of the testatrix is to find and effectuate her intent, as disclosed by what she said in the will. Howard v. Batchelder, 143 Conn. 328, 335, 122 A.2d 307. In seeking that intent, the court looks first to the will itself. It examines the words and the language used in the light of the circumstances under which they were written. It studies the will as an entirety. The quest is to determine the meaning of what the testatrix said and not to speculate upon what she meant to say. First National Bank & Trust Co. of New Haven v. Parish of St. Thomas' Church, 141 Conn. 489, 497, 107 A.2d 246; Chase National Bank v. Guthrie, 139 Conn. 178, 182, 90 A.2d 643.

The will of the testatrix was executed on January 16, 1902. By it she gave her homestead and furniture to her granddaughter, Mabel S. Lloyd. The residue of her estate she gave in trust for the benefit of, and during the lifetime of, her two grandchildren, Mabel S. Lloyd and Stuart L. Rowland, subject to payments, not exceeding $25 a month, to be made from the net income to her brother, George D. Kimberly, during his life, if in the discretion of the trustee his 'personal needs' should require such payments. Then followed these provisions: '5. Upon the death of the last of my said grandchildren, said trust shall cease, and said trust estate shall be divided among the issue or the issue of issue of the body of either of my two grandchildren, if any should be living, said issue or issue of issue to take per stirpes and not per capita. 6. If there should be none of the issue or issue of issue of my saidgrandchildren living at the death of the last of my said grandchildren, then I give said trust estate to my legal heirs.'

'It is a well settled rule of construction that a legacy given to a person or a class, to be paid or divided at a future time, takes effect in point of right on the death of the testator. In such case the contingency attaches, not to the substance of the gift, but to the time of payment. And where words are equivocal, leaving it in doubt whether the words of contingency or condition apply to the gift itself or the time of payment, courts are inclined to construe them as applying to the time of payment, and to hold the gift as vested rather than contingent.' Dale v. White, 33 Conn. 294, 296; Bridgeport-City Trust Co. v. Lister, 140 Conn. 147, 152, 98 A.2d 811; Bridgeport City Trust Co. v. Shaw, 115 Conn. 269, 276, 161 A. 341. In Close v. Benham, 97 Conn. 102, 104, 115 A. 626, 20 A.L.R. 351, we said: 'We have adopted this rule in the belief that it leads to the early vesting of estates, and will carry out the probable intent of the testator, where the will indicates no contrary intent.' In the instant case the will indicates no contrary intent. The decisive words, 'then I give said trust estate to my legal heirs,' in paragraph 6, are written in the present tense. The word 'then,' as it is used, is to be construed as the equivalent of 'in such a case' or 'in that event.' First National Bank of Bridgeport v. Somers, 106 Conn. 267, 275, 137 A. 737, 739.

If the determination of the 'legal heirs' of the testatrix should be made as of the date of the termination of the last life estate, it might be made under a statute of distributions which would take effect many years after the death of the testatrix. She made her will about ten months before her death at the age of eighty-two. The two life tenants were then twenty-two and twenty-three years of age. We cannot assume that the testatrix intended the distribution to be to such persons as might be named in a statute of distributions which might be in force at...