McFarland v. Chase Manhattan Bank, N. A., 144771

• Decision Date: 05 June 1973
• Docket Number: No. 144771,144771
• Citation: 337 A.2d 1,32 Conn.Supp. 20
• Court: Connecticut Superior Court
• Parties: Emily F. McFARLAND et al. v. CHASE MANHATTAN BANK, N.A., Trustee (ESTATE of John H. BREWSTER), et al.

Page 1

337 A.2d 1

32 Conn.Supp. 20

Emily F. McFARLAND et al. v. CHASE MANHATTAN BANK, N.A., Trustee (ESTATE of John H BREWSTER), et al.

No. 144771.

Superior Court of Connecticut, Fairfield County, at Bridgeport.

June 5, 1973.

Thompson, Weir & Barclay, New Haven, for plaintiffs.

Durey & Pierson, Stamford, for the named defendant.

Hirschberg, Pettengill, Strong & Nagle, Greenwich, for Charles S. Wilcox, coexecutor under the will of E. Franklin Brewster, et al.

Jay W. Jacobs, New York City, for defendant Ridgway B. Knight and others.

Nevas, Nevas & Rubin, Westport, for defendant Leo Nevas, guardian ad litem for any unborn and unascertained persons.

SADEN, Judge.

This is an appeal from an order of the Probate Court for the district of Westport entered on September 30, 1971, allowing the account of the defendant Chase Manhattan Bank as surviving trustee under the will of John H. Brewster, deceased, and as executor of the will of Margaret Owens Brewster, deceased.

I

It appears that Margaret Owens Brewster, the life tenant of the trust estate under the will of John H. Brewster, died on December 14, 1970, and that the above account was filed as of that date showing distribution to two named distributees. The plaintiffs claim that the will of John H. Brewster is uncertain and that therefore the Chase Manhattan Bank in its two fiduciary capacities should not have purported to construe the will, to take any position with respect to its meaning, or to have shown in its account a distribution of the trust estate to (1) the defendants Morgan Guaranty and Trust Company of New York, and Thelma V. Brewster, Trustees under an inter vivos trust agreement dated March 19, 1959, and (2) the defendants Claire N. Castle, Charles S. Wilcox, and Security Trust Company of Rochester, executors of the will of E. Franklin Brewster, deceased. The plaintiffs claim that neither of the distributees named in the account is entitled to share in the distribution of the trust estate.

The alleged uncertainty of the will, according to the plaintiffs, arises from the language in Paragraph Sixth ¹ of the will which directs the trustee, on the death of the testator's widow, to transfer a stated percentage of the trust estate, including undistributed income, to each of the testator's two nephews, E. Franklin Brewster and William Macy Brewster. Nothing in the will directs the transfer of such property to an assignee or to the legal representatives of either deceased nephew. Since neither nephew survived the testator's widow, although each survived the testator, no distribution could be made to either of them. Therefore, the will does not expressly specify the persons to whom the trust estate should be distributed. For these and other reasons, according to the plaintiffs, a latent ambiguity exists in the will.

The plaintiffs claim that on March 26, 1936, when he executed his will, the testator was sixty-nine years and four months old and was living with his second wife, Margaret, who was forty-three years and eight months old. He had no children by either of his two marriages. He had been educated for two and one-half years in college, subsequently studied law, and obtained his bachelor of law degree in 1898. For about ten years he had practiced law in New York City and thereafter engaged in business as an importer of foreign steel. At the time of making his will, the testator had retired from business and was the owner of substantial assets consisting of securities having a value of approximately $400,000. He owed substantial sums of money to the Chase National Bank and the Corn Exchange Bank in New York City. The year 1939 was one of economic depression in the United States.

The plaintiffs further allege that during his second marriage and while domiciled in New York, the testator had drawn wills for himself and his wife which they had discussed in detail and in which each spouse left all of his or her property to the other under a mutual understanding and agreement whereby his wife, if she survived the testator, after making provision for the chauffeur, would bequeath the property previously received from the testator to his two nephews, if they survived her at that time, and, if they were deceased, to their children, and if there were no such children, to the children of the testator's nieces. About 1935, the testator and his wife moved to Weston, Connecticut.

The plaintiffs allege that the testator was aware of the state and federal inheritance taxes and the costs of administration of both the estate and the trust fund, which he created, and also knew that, after providing for the chauffeur, there was a likelihood that the residue of his estate would not yield the net income sufficient to pay his wife $12,000 per year and that therefore use of the principal of the trust estate would be necessary to support her according to that standard. The plaintiffs also allege that the testator knew that 'it was likely that his wife would live until she reached the age of 75 or even longer.'

The plaintiffs allege that on March 26, 1936, the testator's next of kin were the five children of his older brother Elisha Franklin Brewster. The children's names were Emily Brewster Frelinghuysen, Caroline Brewster Knight, Sallie Brewster Mulligan (later Davison), Elisha Franklin Brewster, Jr., and William Macy Brewster.

Emily had three children, Emily, Joseph, Jr., and Victoria. Caroline had three children, Ridgeway, George, and Diane. Sallie had two children, Carolyn and Wesley. Elisha Franklin Brewster, Jr., had married a third time and had no children born of any of his marriages. William Macy Brewster had been married but had no children.

The plaintiffs further allege that, at the time of his making his last will, the testator knew that three of his nieces had received a substantial inheritance from a great aunt and that his nephews had received nothing. The testator had very infrequent contact with his nephews and nieces or their children. For the most part, his relatives lived distant from Connecticut, and he himself traveled abroad a great deal and consequently had not 'bothered' with his relatives. There was no ill feeling or estrangement between them, but they had seen little of each other.

The plaintiffs allege that the testator knew that his wife was younger than either of his nephews, William by a month and Franklin by seven years, and that it was therefore likely that she would survive them. He also knew, according to the plaintiffs, that the children of his nieces were younger than his wife and that it was likely that some or all of them would survive her. He also knew that a substantial part, if not all, of the principal of the trust estate would probably be consumed in paying the $12,000 annuity to his wife. The plaintiffs further claim that no person other than his widow and the chauffeur, Henry Lange, should inherit any portion of the trust estate, unless that person survives the widow as set forth in Paragraph Sixth. They also claim that the will provided that no person who was not related to the testator by blood should inherit any portion of the trust estate; and that the likely exhaustion of the trust estate through invasion of principal for the benefit of the window would prevent inheritance thereof by any other person.

On December 14, 1970, the date of death of the testator's widow, E. Franklin Brewster and William Macy Brewster, nephews of the testator named in Paragraph Sixth of the will, had already predeceased her and left no surviving issue, but they had survived the testator's death in 1936. As of December 14, 1970, the plaintiffs contend that the children of the nieces of the testator, the nieces themselves having predeceased the widow, were the next of kin of the testator, namely, the three surviving children of Emily Brewster Frelinguysen, the two children of Caroline Brewster Knight, and the two children of Sallie Brewster Mulligan.

It is the plaintiffs' claim that the true intent and meaning of the will is that, on the widow's death, distribution of the trust estate must be made to a person or persons surviving the widow and related to the testator by blood. Therefore, the bequests in subparagraphs (a) and (b) of Paragraph Sixth were made to the named nephews only and not to the assignees or to the executors or administrators of a deceased nephew. Furthermore, the testator did not use the words showing that they were absolute gifts made without condition, qualification, or limitation as he did in Paragraph Third of the will with respect to a bequest of personal property to his widow.

The plaintiffs also allege that because the trust provided for invasion of principal, it manifested an intention that survival of the widow was a condition of the bequests to his two nephews. Furthermore, because undistributed income of the trust estate could not be determined until her death, this too manifested the testator's intention that the survival of the widow was a condition of the bequests contained in Paragraph Sixth.

Not all of the plaintiffs' allegations have been proved. So many of them as the court deems established will appear hereafter in the course of discussing the various legal aspects.

II

As always in cases involving construction of a will, it is well to review some of the essential rules laid down by our Supreme Court. In Connecticut Bank and Trust Co. v. Hills, 157 Conn. 375, 379, 254 A.2d 453, 455, the court said that 'precedents in the construction of wills or trusts are seldom of persuasive force, since the surrounding circumstances in each case, as well as the precise words employed, usually differ significantly.'

The expressed intent of the testator must, of course, be ascertained in the light of the circumstances surrounding him at the time the instrument was executed, but evidence admissible to determine that intent is, nevertheless, limited. See Perkins v. Corkey, 147 Conn. 248, 159 A.2d...