Russell v. Hartley

• Decision Date: 16 December 1910
• Court: Connecticut Supreme Court
• Parties: RUSSELL v. HARTLEY et al.

78 A. 320

83 Conn. 654

RUSSELL

v. HARTLEY et al.

Supreme Court of Errors of Connecticut.

Dec. 16, 1910.

Case Reserved from Superior Court, New Haven County; William H. Williams, Judge.

Proceedings by Talcott H. Russell, trustee, against Caroline E. Hartley and others for the construction of a will. Case reserved from superior court. Decision as stated.

George D. Watrous and Harrison T. Sheldon, for John F.

Douglass and others. Leonard M. Daggett, for Caroline E.

Hartley. John W. Bristol, for Marguerite B. Hartley and others.

WHEELER, J. The testatrix, Caroline E. Blake, of New Haven, died in April, 1881, leaving as her sole heirs at law a sister, Henrietta M. Hartley, and the children of a deceased brother, Annie F. Douglas and Marie E. H. Blake. By her will, executed June 26, 1878, she left the residue of her estate to be divided equally between her said sister, Henrietta M. Hartley, and Caroline E. Hartley, the daughter of said sister who is now unmarried, and 60 years of age. A codicil to said will, executed February 11, 1881, contains this provision: "The property which I have by my will given to my niece, Caroline E. Hartley, I now desire to be held in trust for her therefore I hereby modify my said will so that my trustee hereinafter named shall take and hold such estate as my said niece would otherwise receive under such will in trust however, and for the following purposes, namely, to duly invest the same and to change investments whenever necessary, to pay over the income of said trust fund to said Caroline E. Hartley during her life and if in the judgment of said trustee she shall need more than the income thereof, then I authorize my said trustee to pay over to her from time to time such portion of the principal of said trust as he may deem necessary for her comfortable support. Upon the death of said Caroline E. Hartley, I authorize my said trustee to pay over whatever may remain of said trust fund to the children of said Caroline, if she leaves any children, but if she dies without issue, then to pay the same to her heirs at law. I hereby appoint Watson V. Coe of said New Haven, trustee of the trust created by this instrument." Said will and codicil were duly admitted to probate and the estate regularly settled, and all lawful claims against the same were paid, and the executor named in said will filed his final account as such, which was accepted and approved. Thereupon said Coe was appointed trustee under said codicil and duly qualified, and one-half the residue was delivered to him as trustee. The plaintiff was appointed by the court of probate and qualified as trustee under said codicil, by succession from the trustee named in said codicil.

The plaintiff trustee asks the advice of the court upon these questions: "(a) Whether the bequest in the codicil to the heirs at law of said Caroline E. Hartley is void, as contrary to the statute of perpetuities in force at the time of the death of said Caroline E. Blake. (b) Whether, if said bequest to the heirs at law of said Caroline E. Hartley is void, the said codicil is in any other respect valid and operative. (c) Whether the said codicil operates to revoke, in whole or in any part, the gift of one-half of the rest, residue, and remainder of the estate of the defendant Caroline E. Hartley. (d) Whether the defendant Caroline E. Hartley is the owner of the property in the plaintiff's hands as trustee as of her own absolute estate, free and discharged of any trust, and is entitled to the immediate possession of the same. (e) What, if any, interest has each of the defendants other than said Caroline E. Hartley in the property in the plaintiff's hands as trustee."

The underlying and controlling purpose of the testatrix in executing this codicil was to make certain that her niece Caroline should be provided with a comfortable support during her life. For this end, the share given by will to the niece absolutely is given by the codicil to a trustee, to hold and invest and pay over the income to her during her life, and if in his judgment she shall need more than the income, to pay over such portion of the principal of said trust as he may deem necessary for her comfortable support. Necessity will create the emergency requiring the trustee to resort to the principal. The language used, without extrinsic evidence, makes clear the intent, and the intention of the testatrix is the governing principle—the rule of rules—in the construction of this will and codicil. The law gives effect to this intention, and so executes the will of the testatrix. Jacobs v. Button, 79 Conn. 362, 65 Atl. 150; Jackson v. Alsop, 67 Conn. 253, 34 Atl. 1106; Schouler on Wills & Admn. (Ed. 1910) § 467; Stimson v. Vroman, 99 N. T. 74, 79, 1 N. E. 147.

The bequest contained in the codicil to the heirs at law of Caroline E. Hartley, if she die without issue, is in violation of the statute against perpetuities in force at the time of the testatrix's death (Gen. St. 1875, p. 352, § 3), and therefore invalid. Bartlett v. Sears, 81 Conn. 34, 70 Atl. 33; Perry v. Bulkley, 82 Conn. 159, 72 Atl. 1014; Harmon v. Harmon, 80 Conn. 40, 66 Atl. 771; Gerard v. Ives, 78 Conn. 489, 62 Atl. 607; Grant v. Stimpson, 79 Conn. 617, 66 Atl. 166; Security Co. v. Snow, 70 Conn. 292, 39 Atl. 153, 66 Am. St. Rep. 107; Tingier v. Chamberlin, 71 Conn. 466, 42 Atl. 718; Leake v. Watson, 60 Conn. 498, 21 Atl. 1075. The illegality of the gift over to the heirs does not affect the validity of the trust, nor can it prevent its being carried out. Unless the testatrix's intent is contrary to some positive rule of law it must prevail. Wolfe v. Hatheway, 81 Conn. 184, 70 Atl. 645. And if it is partly legal and partly illegal, the legal part will be upheld unless bad and good are so inextricably blended as to be incapable of separation. The trust is not subservient or auxiliary to the disposition of the remainder to the heirs, but independent of it, and so wholly separable from the part which is illegal that it does not involve consequences antagonistic to the testatrix's intent, but preserves and supports it; and so the trust may stand though the remainder fall. The primary intention of the codicil is not frustrated by cutting out the bad part. The main scheme of the codicil, which is the trust, stands, while an incidental purpose, the disposition of the remainder, goes. Beers v. Narramore, 61 Conn. 21, 22 Atl. 1061; Andrews v. Rice, 53 Conn. 571, 5 Atl. 823. The trust is attacked as invalid, and wholly inoperative after the death of the trustee named in the codicil, for the reason that the powers conferred upon the trustee are discretionary and personal to him, and cannot be exercised by his successor.

It is true, a power conferred upon a trustee of personal confidence ends with his death. The terms of the codicil construed with the will furnish the true guide in ascertaining whether the power is one of personal confidence, and this guide is the intention of the testatrix. The testatrix contemplates a trust which shall exist during the life of her niece and provide her with a comfortable support from the income, if this be sufficient, and, if not, from the principal in such proportion as the trustee may determine. In the event of a remainder after the termination of the trust the codicil attempts to dispose of this finally. It is wholly improbable the testatrix knowing the uncertainty of life and solicitous and insistent as she exhibits herself in the care of her niece during her life, should intentionally have inserted in the codicil a clause repugnant to her own purpose and taken from her niece the protection which was the object of the codicil by limiting the powers of the trust to the trustee of her own naming. Repugnant provisions must be construed in such way as to preserve the intention of the testatrix. Viele v. Keeler, 129 N. T. 199, 29 N. E. 78. The language of the codicil does not either necessarily or impliedly lead to the conclusion that the powers conferred upon this trustee were because of special or peculiar confidence reposed in him. The duty of the trustee is to pay the income to the niece during her life. Over that he has no discretion. His authority to pay over the principal is limited by the purpose named, viz., for her comfortable support. When the necessity arises the duty of the trustee is clear. The determination of the occasion for the exercise of this power and the extent of its exercise while ordinarily for the discretion and judgment of the trustee is not an ultimate judgment. A court of equity, in an appropriate case, will review and revise that judgment. Peckham v. Lego, 57 Conn. 554, 19 Atl. 392, 7 L. R, A. 419, 14 Am. St. Rep. 130.

Judicial authority in the verbal interpretation of one will can rarely be of great weight in the construction of another, for the intention of each depends upon its own terms and its own setting, and no two are identical. At best, adjudications serve as illustrations of the application of established principles to special c...