Newell v. Beecher
| Decision Date | 11 December 1922 |
| Citation | 119 A. 223,98 Conn. 263 |
| Court | Connecticut Supreme Court |
| Parties | NEWELL et al. v. BEECHER et al. |
Case Reserved from Superior Court, Hartford County; John P Kellogg, Judge.
Suit by Roger S. Newell, executor, and others, against Mary P Beecher and others, to determine the construction of the will and codicil of John H. Beecher, deceased. On findings of fact case transferred from superior court. Will construed.
William N. De Rosier, of Bristol, for plaintiffs.
Epaphroditus Peck, of Bristol, for estate of John H. W. Beecher.
Edward M. Day, of Hartford, for Henry C. Beecher.
Robert P. Butler, of Hartford, for Mary P. Beecher.
Harrison T. Sheldon and William B. Gumbart, both of New Haven, for Aymer J. Beecher.
The will of John H. Beecher gave the residue of his estate to Roger S. Newell in trust for the following uses: (1) To pay to his wife, Mary P., the income from one-third for her life and at her decease to pay this income to his adopted son, Aymer, for his life. No disposition of the remainder of this one-third was specifically made by the testator. (2) To pay to his brother Joseph the income of one-third for his life, and upon his decease to pay to his son Henry C. the income from this one-third for his life. Upon the decease of both Joseph and Henry C., to transfer this one-third to Chauncey, the son of Henry C., to be his absolute property. This one-third was thus fully disposed of. (3) To take entire charge as set forth in paragraph 6 of the third clause of the will of the remaining one-third and use the income at the discretion of the trustee for the welfare of John H. W. Beecher, nephew of the testator, until, as the will provides, he " shall arrive at the age of forty years, at which time the principal of said fund shall be paid and delivered to my said nephew." No provision is made for the contingency of John Henry dying before arriving at the age of 40 years. The fourth clause of the will is as follows:
Thereafter the testator executed a codicil in which he canceled paragraph 6 of item 3 of his will, which covers the provision above referred to giving the use of one-third to John Henry for his life and the principal thereof upon his arriving at the age of 40 years, and makes certain provisions in lieu of paragraph 6. These comprise certain small bequests from this one-third, and, in addition to the provision in the will for his wife, the testator directs his trustee to pay to her during her life the income from $10,000. No specific disposition is made of the remainder of this $10,000. The codicil also directed the trustee to pay to the Congregational Church in Wolcott, Conn., from this one-third, the income from $1,000 for the care and maintenance of its parish house, and continues:
The codicil further republished and confirmed the will except as altered by it. The will as written, apart from the codicil, is entirely clear in its testamentary intent and does not require for its construction the aid of the artificial rules of testamentary construction. The remainder interest in part 1, of the rest, residue, and remainder after the life use of the wife of the testator, Mary P., and upon her decease after the life use of the testator's adopted son, was undisposed of and hence went into the general devise and bequest of the rest and remainder of his estate contained in the fourth paragraph of the will. The rest, residue, and remainder interest in the third part of the residue contained in paragraph 6 of the third clause of the will, of which the testator's nephew John Henry W. Beecher had the use until he arrived at the age of 40 years, became a part of the " rest and remainder" of his estate as provided in the fourth clause, if the nephew died before arriving at the age of 40 years, and as this contingency happened it became a part of this " rest and remainder" which passed under the fourth clause to the testator's two nephews living at his decease, Henry C. Beecher and John Henry W. Beecher. The gift to the nephews under the fourth clause was a class gift, and upon the death of either nephew in the lifetime of the testator his interest under this clause passed to the surviving nephew. The will disposed of the entire estate, and the disposition of the " rest and remainder" to the nephews living at his death definitely fixed the members of the class as of that date.
The postponement of John Henry's enjoyment of the principal of the third part did not prevent his interest in this part from vesting upon the death of the testator. Each nephew took under the residuary clause as a member of a class, upon the testator's death, a vested interest by way of a contingent remainder. John Henry's interest was a vested remainder subject to the condition subsequent that he might be divested by his decease before arriving at the age of 40 years. Johnson v. Edmond, 65 Conn. 492, 499, 33 A. 503; Carpenter v. Perkins, 83 Conn. 11, 16, 74 A. 1062; Allen v. Almy, 87 Conn. 517, 523, 89 A. 205, Ann.Cas. 1917B, 112; Ingersoll v. Ingersoll, 77 Conn. 408, 410, 59 A. 413; Close v. Benham, 97 Conn. 102, 115 A. 626, 20 A.L.R. 351. The qualifying clause under the fourth clause of the will of the devise and bequest to John Henry that it was subject to the terms of the trust created for him by the sixth paragraph of the third clause of the will was evidently intended by the testator as a protection against the possibility of an improvident expenditure of such portion of the " rest and remainder" as might come to his nephew. The reasons for the postponement of the control and enjoyment of the one-third given his nephew in the third clause were equally applicable to the gift of the rest and remainder in the fourth clause. So far the parties in interest do not appear to be of any substantially divergent view. The differences arise out of the construction...
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