Norton v. Mortensen

• Decision Date: 05 March 1914
• Citation: 89 A. 882,88 Conn. 28
• Court: Connecticut Supreme Court
• Parties: NORTON v. MORTENSEN et al.

89 A. 882

88 Conn. 28

NORTON

v. MORTENSEN et al.

Supreme Court of Errors of Connecticut

March 5, 1914.

Case Reserved from Superior Court, Litchfield County; Howard J. Curtis, Judge.

Suit by Thomas L. Norton, administrator, against Lucy E. Mortensen and others for the construction of a will. Will construed as stated.

Sidney P. Ensign, late of Salisbury, died July 24, 1896, leaving both real and personal estate and a will duly probated. By this will he gave the life use of all his property to his wife, Jane E. Ensign, with a limitation over, expressed as follows: "Upon the decease of my said wife I give and devise and bequeath all my estate unto my children to be equally divided between them share and share alike." He was survived by his wife and three daughters. Mrs. Ensign died December 29, 1911. When the will was executed Mr. Ensign was 62 years of age and Mrs. Ensign 58, and the three daughters who survived him were his then only children. One of the daughters, Clarinda, was then married and had five children. She died January 15, 1899. The other two, Harriette and Lucy, were unmarried. Harriette died intestate and unmarried on May 9, 1908. Lucy still survives, being now by marriage Mrs. Augustus Mortensen. At the time of the execution of the will Mr. Ensign was on terms of love and affection with all of his daughters and grandchildren. Clarinda, the mother of these grandchildren, resided in the next house to the testator's. The plaintiff, as administrator d. b. n. of the testator's estate, asks for advice as to the distribution of the estate in his hands ready for distribution.

Howard F. Landon, of Salisbury, for plaintiff. John F. Addis, of New Milford, for defendant Harriette P. Ensign's Estate. J. Clinton Roraback, of Canaan, for defendant Jane E. Ensign's Estate. Frederic M. Williams, of Waterbury, for defendant Mortensen. Leonard J. Nickerson, of Cornwall, for Fenton's Heirs.

PRENTICE, C. J. (after stating the facts as above). Mrs. Mortensen, as the only child of the testator who survived her mother, the life tenant, claims to be entitled to receive from the plaintiff, as administrator of her father's estate, all of the property now in his hands for distribution. She contends that the gift over to the testator's children was one to a class, and that, since the vesting in enjoyment and possession was postponed to the death of the life tenant, the membership of the class was to be determined as of that time. Here are two independent propositions. The first is well made in that the gift is one to a class in the sense that it is not one to persons nominatim, but designated by a general description. The second, and touching the determination of the persons designated, is one not infrequently found in the text-books and cases. Schouler on Wills, § 532; Tingley v. Harris, 20 R. I. 517, 519, 40 Atl. 346; Matter of Baer, 147 N. Y. 348, 353, 41 N. E. 702. Gardner in his work on Wills, p. 447, expresses it as follows: "When a testamentary disposition is made to a class and possession is postponed, it includes all persons within the class at the time to which possession is postponed, and excludes those who are not in existence at the time of the distribution." We have no occasion to inquire as to either the correctness or the true meaning and interpretation of this asserted principle of construction. It is sufficient for present purposes to note that those who assert it recognize that it has its exceptions. Gardner, for instance, having stated the rule as above, immediately proceeds to add that it is subject to two exceptions. One of these is where the limitation over is to heirs of the testator, as was the case in Allen v. Almy, 87 Conn. 517, 89 Atl. 205. He states the other as follows: "Where the limitation over is to children either of the testator or the first taker, it will embrace both those who are in existence at the death of the testator and such as may subsequently come into being before the period of distribution." Page 447. Later on he says more broadly that where there is a limitation over to children, either of the holder of the previous estate or of another, the class includes both children living at the death of the testator and those who subsequently come into being before the arrival of the time for distribution, adding that the remainder vests in the children alive at the death of the testator, subject to open and let in after-born children. Page 452.

Whether the rule as last stated be regarded as an exception to some other rule or an independent one it has received general recognition as one which leads to the early vesting of estates, which the law highly favors, and at the same time effectuates the presumptive intent of the testator under the circumstances where no other indication of that intent appears in the will as read in the light of surrounding circumstances. Jarman's more extended statement of it is as follows: "Where a particular estate or interest is carved out, with a gift over to the children of the person taking that interest or the children of any other person, such gift would embrace, not only the objects living at the death of the testator, but all who may subsequently come into existence before the period of distribution. * * * in cases falling within this rule the children, if any, living at the death of the testator take an immediately vested interest in their shares, subject to the diminution of those shares (i. e., to their being divested pro tanto) as the number of objects is augmented by future births during the life of the tenant for life; and consequently, on the death of any of the children during the life of the tenant for life, their shares (if their interest therein is transmissible) devolve to their respective representatives, though the rule is sometimes inaccurately stated, as if existence at the period of distribution was essential." Jarman on Wills (6th Ed.) 1667. To the same effect see Underhill on Wills, § 558, Theobald on Wills, 312, Page on Wills, 635, Washburne on Real Property, § 1596, and Reeves on Real Property, § 879. Among the cases supporting the proposition are Middletown v. Messenger, 5 Ves. 136; Doe v. Considine, 6 Wall. 458, 475, 18 L. Ed. 869; Minnig v. Batdorff, 5 Pa. 503, 505; Stevenson v. Lesley, 70 N. T. 512, 517; Yea ton v. Roberts, 28 N. H. 459, 467; Arnold v. Arnold, 50 Ky. (11 B. Mon.) 81, 91; Lombard v. Willis, 147 Mass. 13, 14, 16 N. E. 737. We have upon several occasions given full effect to this canon of construction.

In Dale v. White, 33 Conn. 294, 295, there was a gift to the children of the testator's two daughters, named, "that they now have or hereafter may have, to be equally divided between all my grandchildren when the youngest shall become of age." One of the daughters had five children, all of whom were living at the testator's death and at the time of distribution. The other daughter had two children living at the testator's death, and subsequently had four more, two of whom had died at the time of distribution. One of these two was the youngest grandchild, and he died before coming of age; the other died before him. We held that the legacy vested at the death of the testator, and not at the time of distribution, that...