Perry v. Bulkley

• Decision Date: 25 May 1909
• Citation: 82 Conn. 158,72 A. 1014
• Court: Connecticut Supreme Court
• Parties: PERRY v. BULKLEY et al.

72 A. 1014

82 Conn. 158

PERRY

v. BULKLEY et al.

Supreme Court of Errors of Connecticut.

May 25, 1909.

[Copyrighted material omitted.]

Case Reserved from Superior Court, Fairfield County; Edwin B. Gager, Judge.

Action by Henry H. Perry, administrator, against Benjamin A. Bulkley and others for the construction of the will of Henry T. Bulkley, deceased. The court found the facts, and reserved the cause for the advice of the Supreme Court of Errors. Superior court advised.

Henry T. Bulkley died October 28, 1881, leaving a widow, but no issue, and an estate, which, after the payment of all debts and charges, amounted, upon the basis of the inventory, to $111,258.23. He left a will, executed in 1871, to which were attached two codicils, one executed in 1876 and the other in 1878. In the original will he provided for his widow by giving to her the life use of his homestead and of $30,000, and by giving to her absolutely $20,000, one-half of the excess of his estate over $100,000, and all the personal property in or about the homestead. These gifts were expressed to be in lieu of dower. To Miranda B. Merwin, the only child of a deceased sister, he gave $3,000, and to another person $1,500. All the rest, residue, and remainder of his estate he gave to his only brother, Augustus, and his only living sister, Mrs. Francis D. Perry, share and share alike. In the introductory clause of the instrument he expressed his intention of disposing of all of his worldly estate of which he might die possessed, and in the closing paragraph he provided that the will should be void if he should leave a child, and also if his wife should die before him. The two codicils, exclusive of the subscription clauses, are as follows:

First codicil:

"Whereas I, Henry T. Bulkley, of the town and county of Fairfield, state of Connecticut, have made my last will and testament in writing, bearing date the 23rd day of October, A. D. 1871, in and by which I have given, devised and bequeathed, under the 8th section and under the last clause of said will, certain of my estate to my sister, Ann Eliza, and to my late brother, Augustus:

"Now, therefore, I do, by this writing, which I hereby declare to be a codicil to my last will and testament, and to be taken as a part thereof, give, devise and bequeath the one-half part of all the rest, residue and remainder of my estate, both real and personal, (excepting as qualified in the last clause of my said will) to my sister, Ann Eliza, wife of Francis D. Perry, to her and her heirs forever.

"To my niece, Miranda B. Merwin, I do give and bequeath the income, use and improvement of the balance, or other one-half, of said rest, residue and remainder of my estate, as aforesaid, during the term of her natural life, and the remainder, after her decease, to the heirs of her body begotten, absolutely and forever.

"I order and direct that the homestead, devised to me by my late brother7 Augustus, shall be distributed to my niece, Miranda, at a valuation of five thousand dollars, as a part of said residue, devised and bequeathed to her, to be used and enjoyed by her as aforesaid.

"And whereas, by the last clause of my said will and testament, I have directed that if the amount of my whole estate, real and personal, shall exceed the sum of one hundred thousand dollars, upon a just valuation and inventory, the one-half of said excess shall go to my wife, Rebekah W., now, therefore, I do, by this writing, confirm said bequest of said one half of said excess to my said wife, Rebekah W., and I do hereby bequeath the remaining one-half of said excess to my said sister, Ann Eliza, and to my niece, Miranda, share and share alike, to them and their heirs absolutely and forever.

"For the purposes of my said last will and testament, and of this codicil thereto, I hereby order and direct that in the settlement of my estate, my own homestead, including the land, about six acres, shall be valued at the sum of twenty thousand dollars.

"In all other respects and particulars I do hereby ratify and confirm my said last will and testament aforesaid."

Second codicil:

"If my niece, Miranda B. Merwin, dies without issue, I wish the homestead where I live, including house and six acres of land, to go to the children of my uncle, George Bulkley, in equal shares; and they are to participate equally with my legal heirs in whatever balance there may be over and above the homestead, according to my will. I give my namesake, Henry Bulkley Rodman, one thousand dollars."

At the time of the making of the will the brother, Augustus, the sister, Mrs. Perry, and the niece, Miranda B. Merwin, were the testator's nearest relatives. Augustus died before the first codicil was executed, leaving no descendants. Mrs. Perry, who was born in 1817, died in 1893. She never had children. Miranda B. Merwin, born in 1847, is still living. The heirs of the testator at his decease were Mrs. Perry and Miranda. Miranda has never married, and her next of kin at the time the will was made was and ever since has been her half-brother, who was not related to the testator. George Bulkley, named in the second codicil, had five children, the youngest of whom was born in 1853. All survived the testator. The testator was warmly attached to them, and was much with them. The same was true of Miranda B. Merwin, who until she became 12 years of age was a member of the same family as the testator. The widow survived until 1908.

Elmore S. Banks, for plaintiff. Livingston W. Cleaveland and Harrison Hewitt, for defendant Merwin. Edward L. Clark, Jr., for defendant Guilbert. William B. Boardman, for defendants Bulkley and others.

PRENTICE, J. (after stating the facts as above). This will was made subject to its becoming void upon the happening of certain contingencies which never happened. These provisions may therefore be dismissed from consideration. All the questions presented arise out of the language of the two codicils. By the terms of the original will the testator divided "all the rest, residue and remainder" of his estate equally between his only brother, Augustus Bulkley, and his only sister, Mrs. Perry, to them and their heirs forever. It is apparent that the death of this brother childless prompted the execution of the first codicil, and that its chief purpose was to substitute for him as the beneficiary of one of the equal shares of the residuary estate Miranda B. Merwin and her issue. It contains a provision for the bestowment absolutely of the excess of the testator's estate over and above $100,000, thereby reducing the amount of the possible residue, and makes one or two incidental directions relating to the settlement and distribution of the estate; but for the rest the testator concerns himself solely with the disposition of the residue. The gift of one-half of it absolutely to Mrs. Perry is repeated. New provisions take the place of those which in the will gave the other half to Augustus. This half is no longer given to any person outright. Miranda B. Merwin, the only child of a deceased sister, is made the life tenant of it. The reason for this failure to bestow upon Miranda an absolute estate, such as has been given to Augustus, may be found in the fact that her next of kin was not of the kindred of the testator. But with this we are not concerned. Of that which in the will had been given to Augustus there was left undisposed of the remainder upon the termination of Miranda's life estate, and the testator provided that it should go "to the heirs or issue of her body, begotten, absolutely and forever."

This provision presents a question as to the effect of the attempted gift over. It is clearly void unless the quoted language describing the beneficiaries is to be interpreted as synonymous with children. The ambiguity of the language is apparent; and it is the duty of the court to determine and declare the intent of the testator thereby expressed. In so far as the language has a well-defined and recognized primary meaning, that meaning should be accorded to it unless it appears that the testator used it in a different sense, when it should be given the meaning which he intended should be attached to it, if, thus understood, the provision of the will as applied to the estate would have an intelligible and sensible import. Leake v. Watson, 60 Conn. 498, 500, 21 Atl. 1075; Connecticut T. & S. D. Co., 75 Conn. 683, 692, 55 Atl. 171. The terms "heirs," "heirs of the body," "issue," and "issue of the body" in their primary legal meaning comprehend more than immediate issue. Bartlett v. Sears, 81 Conn. 34, 39, 70 Atl. 83; Ruggles v. Randall, 70 Conn. 44, 48, 38 Atl. 885. Certain of the parties claim that the words "of her body begotten" should be construed as qualifying both the words "heirs" and "issue," and that the use of the word "begotten," in this connection, clearly indicates the intent of the...