Leake v. Watson

• Decision Date: 01 June 1891
• Citation: 21 A. 1075,60 Conn. 498
• Parties: LEAKE v. WATSON.
• Court: Connecticut Supreme Court

21 A. 1075

60 Conn. 498

LEAKE

v. WATSON.

Supreme Court of Errors of Connecticut.

June 1, 1891.

Case reserved from superior court, New Haven and Fairfield counties.

For former report, see 20 Atl. Rep. 343.

C. R. Ingersoll, for plaintiff.

H. Stoddard and J. W. Ailing, for defendants.

TORRANCE, J. This is an action by the plaintiff, as trustee of certain estate for Georgianna Nichols, under the will of her father, Charles Bulkley, against the defendant, to recover the value of sundry stocks and bonds alleged to belong to the trust-estate, and to have been received and sold by the defendant, as a broker, with knowledge that the same were being Bold and disposed of in violation of the trust. Upon a former hearing before this court, on a reservation made by the superior court, it was found that the claims of the parties virtually called for the judicial construction of the will of Charles Bulkley, and that the questions involved could not properly be considered or determined without the presence, as parties, of all persons interested in and under said will. The case was therefore remanded to the superior court to give the defendants the opportunity to summon into said court, and make parties to said cause, all such interested parties, to the end that the measure of right in Mrs. Nichols to the shares set apart in trust for her, and all questions presented by the respective parties, might be finally determined in one proceeding. See the case of Leake v. Watson, 58 Conn. 332, 20 Atl. Rep. 343. Thereupon, in the superior court, all persons interested in or under said will were made parties to this cause, and, upon pleadings filed by them, were heard by said court. The superior court made a supplemental finding, and, upon the facts found in the original and supplemental findings, reserved the case for the advice of this court.

Charles Bulkley died in October, 1875. At the date of the execution of his will, in April, 1875, there were living four children of the testator, to-wit, Georgianna Nichols, Mary Elizabeth Jennings, Elizabeth Whitney Hyde, and Catharine Bulkley; also, nine grandchildren, including three children of Charles H. Bulkley, a deceased son of the testator. Catharine Bulkley, one of the daughters, died before the testator. His other three children and his nine grandchildren survived him, and are all parties to this suit. Since his death three great-grandchildren have been born.

One of the principal questions in the case as now presented arises upon the construction of the fourth clause of Charles Bulkley's will, which reads as follows: "Fourth. All the rest, residue, and remainder of my estate, real and personal, I give, devise, and bequeath unto trustees as hereinafter named, for the uses and purposes hereinafter set forth, as follows: One-fifth to be held in trust; and the income, use, interest, and improvement thereof to be paid over annually, or in more frequent installments, if deemed expedient and convenient by the trustees, unto and for the use and benefit of my daughter Mary Elizabeth, wife of Isaac Jennings, the remainder to go to her heirs forever: provided, that said Mary Elizabeth may, if she shall deem it expedient and necessary, from time to time, take and receive portions of the principal, not exceeding in all one-half of such principal, and not to exceed the sum of one thousand dollars in any one year, such portion of the principal to be paid over by the trustees upon notice in writing so to do, and the receipt of said Mary Elizabeth to be a sufficient voucher to the trustees in the premises; three other parts, of one-fifth each, to be held in trust in the same manner as aforesaid, with the privilege of receiving portions of the principal, for the use and benefit respectively of my other daughters, Elizabeth Whitney, wife of Rev. Frederick S. Hyde, Georgianna, wife of William B. Nichols, and my aforementioned daughter Catharine, with remainder to their heirs forever. And I appoint as trustees, to execute the trusts aforesaid, my wife, Elizabeth Bulkley, and my nephew, Oliver Bulkley, and direct that they be not required to give bonds for the performance of their duties as such trustees. The remaining one-fifth of said residue I give, devise, and bequeath unto my wife, Elizabeth Bulkley, and Francis D. Perry, of Fairfield, to hold in trust, to appropriate the use, income, interest, and improvement thereof for the support, maintenance, and education of Annie E. Bulkley, Erastus B. Bulkley, and Grace E. Bulkley, children of my deceased son, Charles H. Bulkley, in such manner as they, the said trustees, shall deem proper and expedient, and using so much of the principal as said trustees may find necessary to do during their minority, and to pay over unto each, at attaining majority, all, or so much as said trustees may deem fit, of the share then due such one arriving at majority, and upon arriving at majority of the youngest living of said children, to pay over unto each child, or its heirs if deceased, the principal sum, or so much thereof as shall not have been before expended, to hold to them respectively and their heirs forever."

Whether the "rest, residue, and remainder" spoken of in this fourth clause consisted, at the time of Charles Bulkley's death, wholly of personal estate, or partly of personal, and partly of real, estate, and, if of both, what proportion was real and what personal, does not perhaps clearly appear from the record. Presumably it consisted of both, for the clause in question speaks of "my estate, real or personal," and the sixth clause gives the executors power to dispose of any and all of the real estate except that described in the second clause of the will However this may be, the record shows that the estate actually distributed to the trustees under this fourth clause consisted wholly of personal estate.

An examination of this fourth clause of the will shows clearly two tilings: First, that, whatever disposition the testator intended to make of any one of the shares given in trust for the daughters, that same disposition he intended to make of all; and, second, that the clause in question, in the case of each daughter, contains in form, at least, two gifts, namely, one of the equitable life-use to the daughters, coupled with certain rights, powers, or privileges to take part of the principal, and a further gift of what shall remain of the trust property to their heirs. The fourth clause as clearly inform contains the two gifts aforesaid as the second clause contains a gift to the wife of the life-use of the homestead, and a gift over to the children or their heirs.

The defendant claims, in substance, on this part of the case, that if the fourth clause does in fact contain two such distinct gifts the gift of the remainder to the heirs is void, because it violates the provision of our statute against perpetuities. The plaintiff, on the other hand, claims that said clause either does not contain two such distinct gifts, or, if it does, the gift of the remainder over does not come within the prohibition of the statute.

The first question, then, is whether the clause in question contains in fact, as well as in form, a separate and distinct gift of the remainder to the heirs of the daughters. In support of his claims upon this point, the plaintiff says in substance that in the sentence, "the remainder to go to her heirs forever," the word "heirs" is used as a word of limitation; that the testator intended to vest in Mrs. Nichols an equitable life-estate, together with a remainder in fee, which would descend to her heirs, and which she could not alien. In short, the plaintiff claims that this clause is to be interpreted as giving the fee to Mrs. Nichols, without the power to dispose of it or to incumber it in any way to the prejudice of the heirs to whom it would eventually go by descent and not by purchase. The argument in support of this claim seems to be that inasmuch as the remainder is to go to her heirs the testator intended them to take such remainder in the character of heirs, and not as purchasers, and that to acccomplish this their ancestor must take a fee, but without the power to dispose of it or incumber it.

The intent of the testator is to be ascertained from the language employed; and, if the language here in question is given its natural and ordinary meaning, it is difficult to see how any such claimed effect-can flow from it. In the first place, it should be remembered that the property actually held in trust was in fact personal property, and not real estate. The will was made in April, 1875. The testator died in the fall of that year, and the estate was distributed within six months after his decease. At the time of the distribution the estate, amounting to nearly $300,000, consisted almost entirely of stocks and bonds. It is quite reasonable to suppose that both at the time the will was drawn, and at the decease of the testator, the estate consisted almost entirely of personal property. If so, it is difficult to believe that either the testator or the draughtsman had in mind the creation of estates in fee or in tail in this personal property.

In the next place, it is apparent that the will was "drawn by one familiar with legal conceptions and legal terminology, and quite capable of expressing himself in language which admits of little or no dispute. When he uses the word "heirs" elsewhere, as a word of limitation, he leaves no room for doubt that he intended so to use it; when he uses it as a word of purchase, it clearly appears that he intended so to use it; when he gives a life-estate, as in the second cause, he leaves no room for doubt as to the kind and nature of the estate given. In making the gift of the life-use to the daughters, and of the remainder to their heirs, the testator makes use of substantially the same language employed by him in the second clause, to give a life-use to his wife and a remainder to the children...