Mooney v. Tolles

• Decision Date: 03 March 1930
• Citation: Mooney v. Tolles, 149 A. 515, 111 Conn. 1 (Conn. 1930)
• Court: Connecticut Supreme Court
• Parties: MOONEY ET AL. v. Tolles ET AL.

149 A. 515

111 Conn. 1

MOONEY ET AL. v. Tolles ET AL.

Supreme Court of Errors of Connecticut.

March 3, 1930

Case Reserved from Superior Court, New Haven County; Arthur F Ells, Judge.

Suit by Edward L. Mooney and others, executors and trustees under the will of Jessie K. Shuttleworth, late of Madison, and the administrator with the will annexed of the estate of Elizabeth F. King, late of New Haven, for the construction of the will of Mrs. Shuttleworth, in which Sheldon Tolles Second, and others were made defendants. The case was brought to the superior court and reserved by that court upon the facts set forth in the complaint and admitted by the answers and on additional stipulated facts for the advice of the Supreme Court of Errors.

Questions answered.

Jessie K. Shuttleworth died on December 12, 1928, leaving a will dated November 16, 1926, which was duly admitted to probate. She left surviving her husband, Herbert W. Shuttleworth, to whom she was married on December 24, 1914, and who was 51 years of age at her decease, and as her only heirs at law and next of kin two sons by a former marriage, King Tolles, of Cleveland, Ohio, and Sheldon H. Tolles, of Willoughby, Ohio all of whom are now living.

At the date of the death of the testatrix, her son King Tolles had three children then living, Sheldon H. Tolles, Second, born July 14, 1921, King Tolles, Jr., born October 30, 1922, and Morley Tolles, born March 29, 1924; her other son, Sheldon H. Tolles, had only one child then living, of whom he was the natural parent, Sheldon King Tolles, who was born November 18, 1921. At the death of the testatrix, her son Sheldon H. Tolles also had an adopted child, Laurel Tolles, who was born April 11, 1926, first came to live with Sheldon H. Tolles on or about April 11, 1927, and was duly and legally adopted by him and his wife on January 31, 1928. Prior to her adoption, Laurel Tolles was not related in any way to Jessie K. Shuttleworth or Elizabeth F. King. The testatrix knew of the adoption and approved of it.

Elizabeth F. King, mother of the testatrix, died January 26, 1921, leaving a will, article second of which was as follows: " The property which I received from the estate of my late husband, I give, devise and bequeath to my daughter during her lifetime, with power to dispose of the same by her will. If she leaves no will then the same shall go to my grandsons, now living, sons of my daughter, or their lawful issue."

At the date of the death of the testatrix, Edna K. O'Sullivan, mentioned in article third of Mrs. Shuttleworth's will, was 61 years of age.

The questions upon which advice is desired pertain to the second, third, sixth, and ninth articles in the will of Jessie K. Shuttleworth, which are set forth in a footnote,^[1] and are as follows: (a) Does the provision in article second, for the " lawful child or children" of testatrix's son Sheldon Tolles, include Laurel Tolles, an adopted daughter of Sheldon; and does the gift over upon a certain contingency to the " lawful issue" of Sheldon Tolles include his adopted daughter? (b) Does the contingent gift in article third to " the children of my sons, Sheldon and King," include the adopted daughter of Sheldon Tolles? (c) Does the provision in article sixth, exercising the power of appointment given to the testatrix in and by the will of her mother, Elizabeth F. King, and appointing the property subject to that power of appointment " to the lawful issue of my sons, Sheldon and King," include the adopted daughter of Sheldon Tolles? (d) Should the property appointed by article sixth be distributed one-half to the children of Sheldon and one-half to the children of King, or should the distribution be per capita to the children of Sheldon and King as one class? (e) Does the provision in article ninth, for the child or children of Sheldon Tolles, include the adopted daughter of Sheldon Tolles? (f) Do the children of Sheldon and the children of King take vested interests in the income of the trust funds created by articles second and ninth, which will not be subject to defeasance in the event of the death of a child during the continuance of the trust, or what interests do said children take in said income? (g) Do the children of the sons, Sheldon and King, take vested remainder interests in the corpus of the trust funds created by articles second and ninth, which will not be subject to defeasance in the event of the death of a child prior to the time of distribution, except in the contingency of the death of all the children of either of said sons prior to the death of their parent, or what interests do said children take in the corpus of said trust funds? (h) If an additional child or children are hereafter born to the sons, or either of them, prior to the time for the distribution of the trust funds, will such additional child or children be entitled to take under the provisions of articles second, third, and ninth?

WHEELER, C.J., dissenting in part.

J. Dwight Dana, of New Haven, for plaintiffs.

Harrison Hewitt and Mary E. Manchester, both of New Haven, for defendants Laurel Tolles and others.

James E. Wheeler, of New Haven, for defendants Sheldon H. Tolles, Second, and others.

William R. Pitkin, of New Haven, for defendants Sheldon King Tolles and others.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

HINMAN J. (after stating the facts as above).

The will discloses no intention to attach any meaning to " lawful child or children," the term generally used throughout the will, distinctive from " child or children" as employed once, apparently by inadvertence, in article ninth, and " children," appearing in article third.

" Child or children" manifestly refers and applies and is limited to those standing in the position of first degree. " Issue" is used in the second, sixth, and ninth articles of the will, not in the restricted sense of children, but in its primary, usual, and more comprehensive meaning as including descendants in every degree. Hoadley v. Beardsley, 89 Conn. 270, 277, 93 A. 535; Bartlett v. Sears, 81 Conn. 34, 39, 70 A. 33.

The plan of disposition contemplated by the testatrix as to the trust fund created by the second article was clearly, that, after the death of her husband, the income of one-half of the fund should be paid, during the life of each of her sons, respectively, to his child or children in equal shares, and upon his death the principal be paid over to such child or children, if any be living at the decease of such son; but that, if either son should die leaving no child or children, the portion of the principal which would thereupon have been paid to the child or children of such son, had any been living, shall be paid to the " lawful issue" of the other son --that is, to the then living descendants of the latter most nearly related to him, although such relationship be more remote than that of child or children. Article ninth embodies a plan similar in this respect as to the residuary estate.

The principal question is whether the provisions for the child or children and the issue of Sheldon Tolles includes his adopted daughter, Laurel Tolles. Whether the testatrix intended to include in the gift to children an adopted child depends upon the intention on the part of the testatrix, ascertained from the reading of the will, in the light of all the surrounding circumstances. Middletown Trust Co. v. Gaffey, 96 Conn. 61, 67, 112 A. 689; Note, 27 L.R.A. (N. S.) p. 1158. In the determination as to this intention several considerations are to be resorted to. One of these is the adoption statute in effect in the state at the time; it being presumed that the testatrix knew and acted in contemplation of the reciprocal rights and duties resulting from the existing statute. " Where the statutes are broad and comprehensive in their terms, the testator is generally held to have intended to include a child of adoption within the term ‘ child or children; ’ and in those states having a more restricted statute * * * [such as those providing that an adopted child, while inheriting from an adopting parent, shall not be capable of taking from other kindred of the adopting parent, by inheritance or by right of reversion] an opposite conclusion is arrived at, in the absence of other elements showing or tending to show an intent to the contrary." 27 L.R.A. (N. S.) note, page 1159, and cases therein set out. " Our statute (Rev. 1918, § 4879) * * * belongs to the broad class. By it the adopted child becomes, by the fact of adoption, the child in name and in law of its parents, with all the reciprocal rights and duties existing between them as between natural child and parent, and with the right of inheritance between parent and child and their relatives the same as though such adopted child were the natural child of such adopting parent." Middletown Trust Co. v. Gaffey, supra, 96 Conn. 70, 112 A. 689, 692. It was stated in that case that, if a presumption of intent to use the term " child" in a will as including a child by adoption were to arise from the assumption of knowledge of the law of adoption, it would be out of a statute as broad as ours, and that even though, as in that case, this presumption is held not to arise, yet the existence of the statute " is one of the facts to be considered among the circumstances and environment surrounding [the testator]."

An intention that Laurel should be included as a child of Sheldon is clearly indicated by the plan evinced by articles second and ninth of the will. This contemplated that, while her sons were to take no direct benefit, either present or prospective, they were to be relieved, as to each of their children, of the expense of support and education to the...