Middletown Trust Co. v. Gaffey

• Decision Date: 10 March 1921
• Citation: 96 Conn. 61,112 A. 689
• Court: Connecticut Supreme Court
• Parties: MIDDLETOWN TRUST CO. v. GAFFEY et al.

112 A. 689

96 Conn. 61

MIDDLETOWN TRUST CO. v. GAFFEY et al.

Supreme Court of Errors of Connecticut.

March 10, 1921

Appeal from Superior Court, Middlesex County; George E. Hinman Judge.

Suit by the Middletown Trust Company against Margaret Faherty Gaffey and others to determine the construction of the seventh clause of the will of Thomas M. Gaffey of New London deceased. Judgment construing this clause in favor of Dora Dillon and Edna Gaffey, administratrix of the estate of Herbert H. Gaffey, facts found, and appeal by Margaret Faherty Gaffey. No error.

Thomas M. Gaffey, of New London, deceased on the ___ day of March 1905, leaving a will executed March 10, 1905, and four children, Thomas F. Gaffey, Herbert H. Gaffey, Dora E Dillon, and Eugene Gaffey, as his only heirs at law and next of kin. The will was duly admitted to probate. The testator bequeathed $15,000 to his son Herbert H. Gaffey and his daughter, Dora E. Dillon, in trust to use the income for the benefit of his son Thomas during his life-

" and on his death with issue surviving to use and expend said income and profit for the benefit equally of each of the children of my said son Thomas until the youngest surviving child shall have arrived at the age of twenty-one years, then to divide and pay over to said surviving children said trust fund, share and share alike, but if none of his children shall survive my son Thomas, then on the death of my son Thomas to divide said trust fund equally between my said son Herbert and said daughter, Dora, their heirs and assigns to be theirs absolutely."

After making a small bequest to St. Mary's Cemetery the testator divided all the remainder of his property into three equal parts, one of which he gave to his son Herbert and one to his daughter, Dora. The third part he gave by the seventh clause to Herbert and Dora in trust-

" to use and expend the income and profit thereof for the benefit of my son Eugene F. Gaffey, during his life and on his death with issue surviving to use and expend the income and profit thereof for the benefit of such issue if any there be, until the youngest of such issue shall have arrived at the age of twenty-one years, then to divide and pay over to such issue said equal one-third part, share and share alike, but if my son Eugene should die without issue, or if none of his issue should survive him, then on his death to divide said equal one-third part equally between my said son Herbert and my said daughter Dora, their heirs and assigns absolutely."

Upon the distribution of the estate, personal property of the appraised value of $24,606.10 was distributed to said Herbert H. Gaffey and Dora E. Dillon as trustees under the seventh clause of the will.

Thomas F. Gaffey died subsequent to the death of his father, Thomas M. Gaffey, and no administrator has been appointed on his estate. On January 10, 1917, Herbert H. Gaffey died, and on February 5, 1917, his widow, Edna Gaffey, duly qualified as administratrix on his estate.

On August 10, 1910, the plaintiff was duly appointed as trustee under said seventh clause and duly qualified as such to succeed said Herbert H. Gaffey and Dora E. Dillon, who had resigned said trust, and they turned over to plaintiff property appraised at $24,530.55 as the principal fund of the trust, and plaintiff holds property of that value as the principal fund of said trust.

On September 21, 1917, Eugene F. Gaffey and Mary F. Gaffey, his wife, entered into a written agreement with James and Catharine E. Faherty for the adoption of their daughter, Margaret, which agreement was duly approved by the probate court for the district of Middletown on October 5, 1917, and said Margaret Faherty thereupon became the legally adopted child of said Eugene F. and Mary F. Gaffey. On October 23, 1917, Eugene F. Gaffey died, leaving surviving him a widow, Mary F. Gaffey, and Margaret Gaffey, his adopted daughter. No administrator has been appointed over his estate.

Various questions and claims have been made by the parties as to the construction of the seventh clause, as follows:

" (1) Is said Margaret Faherty Gaffey, the adopted child of said Eugene F. Gaffey, his issue, within the meaning of that word as it is used in the said seventh clause of the will of Thomas M. Gaffey?

" (2) Should the trustee under said clause continue to hold said fund and to use and expend the income thereof for the benefit of said Margaret Faherty Gaffey until she shall have arrived at the age of 21 years, and then pay over the principal to her or her heirs, or should the trustee now pay over said principal fund to the remaindermen named in said clause or their representatives?

" (3) In the event that it is held that said Margaret Faherty Gaffey is not ‘ issue’ within the meaning of said clause, and that said fund should be now paid over to the remaindermen named or their representatives, did said Herbert H. Gaffey at the date of his death have a contingent remainder interest in said fund or a vested remainder subject to be divested upon the death of Eugene F. Gaffey, leaving issue?

" (4) In the event that it is held that he had a contingent remainder which never vested, has the bequest to him now lapsed, and, if so, has it become intestate estate?

" (5) In the event that it is held that the trustee should pay over said trust fund to the remaindermen or their representatives, to whom and in what proportions should said fund be paid?"

The trial court adjudged the construction of this clause as follows:

" (1) Said Margaret Faherty Gaffey is not the issue of said Eugene F. Gaffey, within the meaning of that word as it is used in the seventh clause of the will of Thomas M. Gaffey.

" (2) The trustee should now pay over the principal trust fund and accumulated interest thereon created by the seventh clause of the testator's will to the remaindermen, Dora Dillon and Herbert Gaffey, the remaindermen named in the seventh clause, or to their representatives.

" (3) Herbert H. Gaffey at the date of his death had a vested remainder interest in the trust fund created in said seventh clause of said will, which was subject to be divested upon the death of Eugene F. Gaffey, leaving issue.

" (4) The trustee should pay one-half of said trust fund and accumulated interest created in said seventh clause to Edna Gaffey, administratrix of the estate of Herbert H. Gaffey, and one-half of said trust fund to Dora Dillon."

Beach and Curtis, JJ., dissenting.

Gustaf B. Carlson, of Middletown, for appellant.

Frank L. McGuire, of New London, for appellees Gaffey and Dillon.

WHEELER, C.J.

The entire decision rests upon the single question whether the term " issue," as used in the seventh clause of this will, includes the adopted child of Eugene F. Gaffey, the son of the testator. The term " issue" in a will is to be construed as a word of purchase, unless it appears from the context and surrounding circumstances to have been used as one of limitation. Its primary, and therefore presumptive, meaning, when used as a word of purchase, is heirs of the body, and includes descendants in every degree. But when the intention of the testator, as evinced by the context and surrounding circumstances, indicates that he used the word " issue," not in its larger significance, but in its more restricted sense, it will be construed so as to effectuate the testator's intent and to be synonymous with children or grandchildren. Bartlett v. Sears, 81 Conn. 35, 39, 70 A. 33; Hoadley v. Beardsley, 89 Conn. 270, 277, 93 A. 535; Mitchell v. Mitchell, 73 Conn. 304, 306, 47 A. 325.

In the second clause of his will the testator establishes a trust for the benefit of his son Thomas practically identical with the trust established in the seventh clause for the benefit of his son Eugene, except that the trust for Thomas provides that upon his death with issue the income of the trust shall be used for the benefit of the children of Thomas, whereas the trust for Eugene provides that upon his death with issue the income of the trust shall be used for the benefit of the issue of Eugene.

The testator used the term " issue" in the seventh clause in the restricted sense in which he used the term " children" in the second clause. The terms are used interchangeably and should be so construed in these clauses. In re Duckett, 214 Pa. 362, 63 A. 830; Russell v. Hartley, 83 Conn. 654, 664, 78 A. 320. So that our question is whether the testator in the provision in this trust for the children of Eugene included the adopted child of Eugene as a sharer in his bounty.

Language in a will susceptible of different meanings is to be given that meaning which will most nearly effectuate the testator's intention. The language is to be construed in connection with the entire will and in the light of the circumstances surrounding it which were probably known to the testator.

The meaning in which the testator used the term " issue" or " children" in this clause is not to be found alone in the statute of adoption, but by ascertaining the testator's intention. And one of the factors in reaching this end must be the consideration of the fact that the testator must be assumed to have made his will in the knowledge of the existence of our statute of adoption. " Children," when used in a will, may include adopted as well as natural children, or it may mean natural children. Its meaning in a will is wholly a question of what the testator's intention was. In every case of doubtful construction in a will of the word " children" the law favors...