Pease v. Cornell

• Decision Date: 15 June 1911
• Citation: 84 Conn. 391,80 A. 86
• Parties: PEASE v. CORNELL et al.
• Court: Connecticut Supreme Court

80 A. 86

84 Conn. 391

PEASE

v. CORNELL et al.

Supreme Court of Errors of Connecticut.

June 15, 1911.

Case Reserved from Superior Court, Fairfield County; Milton A. Shumway, Judge.

Suit by Simeon Pease, administrator cum testamento annexo of Charles Cornell, deceased, against George W. Cornell and others for the construction of the will. Cause reserved on an agreed finding of facts, for the Supreme Court of Errors. Will construed, and questions answered.

Charles Cornell died November 18, 1883, domiciled in said Fairfield, possessed of both real and personal property, and leaving a will executed May 7, 1881, duly probated Dec. 28, 1883. Said Walter Cornell and Isaac B. Wilson were named as executors in said will, and resigned, and plaintiff was appointed administrator with the will annexed on September 21, 1908, and duly qualified. The testator was survived by a widow, two sons, Walter Cornell and the defendant George W. Cornell, and two daughters, the defendants Fannie M. Seeley and Grace W. Cornell. The widow died in November, 1910. Said Walter Cornell died July 29, 1909, and the defendant Frances A. Cornell has been appointed and qualified as administratrix of his estate. Said Fannie M. Seeley is married, having no children. Said George W. Cornell has four children, all of whom were living at the date of death of the testator. One of said children, Alice B. Cornell, was born five days before the death of the testator, but said Charles Cornell never knew of the birth of said Alice B. Cornell. The testator gave to his wife the use during her life of all his estate and thereafter provided as follows:

"Art. 5. Upon the death of my said wife, I give to my son, George W. Cornell, ten dollars, which sum with that already advanced by me to him will make twelve hundred dollars.

"Art. 6. I give to my son, Walter Cornell, twelve hundred dollars to be his forever.

"Art. 7. I give to my daughter, Gracie W. Cornell, twelve hundred dollars to be hers forever.

"Art. 8. I give to said Walter Cornell and Isaac B. Wilson eight hundred dollars to hold in trust for the following purposes, to wit:

"1. To pay the income thereof to my daughter, Fannie M. Seeley, during her natural life.

"2. Upon her death to divide and pay said sum of eight hundred dollars among and to her lawful issue and their descendants to be theirs in equal portions per stirpes forever.

"3. But if she dies leaving no descendants living at that time, then said sum shall be divided among, and paid to, said Walter Cornell, Gracie W. Cornell and said Walter Cornell and Isaac B. Wilson, as trustees, for the use of said George W. Cornell, during his life, and upon his decease to his heirs forever in three equal portions share and share alike forever (said sum of eight hundred dollars with that already advanced by me to her, Fannie, will make twelve hundred dollars.)

"Art. 9. All the rest and residue of my estate then remaining I give and devise to said Walter Cornell and Isaac B. Wilson, as trustees, for the life use of said George W. Cornell, and upon his decease to his heirs forever, to said Walter Cornell and Isaac B. Wilson, as trustees, for the life use of said Fannie M. Seeley, and upon her decease to her descendants forever, if any, if not, to go as provided in like case in article eight (third section) above, and to said Walter Cornell and to said Gracie W. Cornell in four equal shares, or if any of them be dead leaving no living issue and descendants, then to the survivors of them share and share alike."

The questions upon which the advice of this court is asked are:

"(a) Whether that portion of article 8 of the will which provides that the trust fund therein created for the benefit of Fanny M. Seeley shall, upon her death, be divided among her lawful issue and their descendants, is void, as being in contravention of the rule against perpetuities.

"(b) Whether that portion of article 8 of the will which provides that the trust fund therein created for the benefit of George W. Cornell, shall, upon his death, vest in his heirs, is void, as being in contravention of the rule against perpetuities.

"(c) Whether that portion of article 9 of the will which provides that the trust fund therein created for the benefit of George W. Cornell, shall, upon his death, go to his heirs, is void, as being in contravention of the rule against perpetuities.

"(d) Whether that portion of article 9 of the will which provides that the trust fund created therein for the benefit of Fannie M. Seeley, shall, upon her death, go to her descendants, is void, as being in contravention of the rule against perpetuities."

John W. Banks, for plaintiff. Clifford B. Wilson, for George W.

Cornell and others. John C. Chamberlain, for Rachel R. Scott.

Spotswood D. Bowers, for Charles A. Cornell and others.

WHEELER. J. (after stating the facts as above). The primary and usual meaning of a term used in a will is to govern unless it appears from the context or the surrounding circumstances at the time the testator made the will he intended otherwise.

12] What the testator intended if "sufficiently expressed" and "not contrary to some positive rule of law" must prevail.

The remainder over in the bequests for the benefit of his daughter Fannie in article 8, § 2, "to her lawful issue and their descendants," and in article 9 "to her descendants forever" violates the statute of perperuities in existence at the decease of the testator, since "issue" and "descendants" in their primary and usual sense "comprehend more than immediate issue." Since the descendants can only be ascertained upon the death of the daughter Fannie, these might; include children of persons not in being at the testator's death.

In the construction of a devise to the heirs of a living person we said: "It has been determined in this state by a long and uniform line of decision, * * * that a devise to the heirs of a living person unless it appears that his children are intended, violates the statute against perpetuities, which existed at the date of the decease of the testator, because, until the death of such person, his heirs cannot be ascertained, and it is possible that they may be the issue of children yet unborn at the testator's death." Grant v. Stimpson, 79 Conn. 620, 66 Atl. 167. The same rule applies in the construction of the bequests to the daughter Fannie. Neither the context nor the surrounding circumstances furnish any ground for thinking that the testator used these terms in other than their primary significance.

At the date of execution of the will and at his death the testator had a wife, two sons, and two daughters. None of his children had children except George W. Cornell, and at the date of execution of the will there were three of these. The testator made a like bequest to two of his children and to George W.—$10—which sum, he says, "with that already advanced by me to him will make twelve hundred dollars."

To his daughter Fannie he gave the income of $800 during her life, he having already advanced to her a sum sufficient with this bequest to equal $1,200.

The remainder over of the bequest to the daughter Fannie in article 8, if she die leaving no descendants then living, he gives to trustees for the use of his son George W. "during his life and upon bis decease to his heirs forever in three equal portions share and share alike forever."

"Heirs" and "children" have different meanings in the law, "yet in common speech they are often used as synonymous." Lockwood's Appeal, 55 Conn. 165, 10 Atl. 519. The testator may have used the word "heirs" with their ordinary meaning. If we may construe the word "heirs" to mean the children of George W. Cornell living at the testator's death, this bequest will be valid, and the law prefers that to the construction which will convert this bequest into an illegal perpetuity. Nicoll v. Irby, 83 Conn. 530, 77 Atl. 957; Farnam v. Farnam, 83 Conn. 369, 381, 77...