S. Norwalk Trust Co. v. St. John

• Decision Date: 04 October 1917
• Citation: 92 Conn. 168,101 A. 961
• Court: Connecticut Supreme Court
• Parties: SOUTH NORWALK TRUST CO. v. ST. JOHN et al.

101 A. 961

92 Conn. 168

SOUTH NORWALK TRUST CO.

v. ST. JOHN et al.

Supreme Court of Errors of Connecticut.

Oct. 4, 1917.

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

Suit by the South Norwalk. Trust Company, executor and trustee, against Mary D. St. John and others, to determine the validity and construction of the will of Oscar St. John, deceased. Reserved upon an agreed finding of facts for the advice of the Supreme Court of Errors. Superior court advised in accordance with the opinion.

Oscar St. John, late of Norwalk, died September 4, 1912, possessed of both real and personal estate. He left a win which was duly probated, in which the plaintiff was named as executor and trustee. The estate has been settled. The plaintiff qualified as trustee, and there remains in his hands as such trustee certain real and personal property. The testator left a widow, the said Mary D. St. John, who died February 1, 1917, subsequent to this action, and eight children, his only heirs at law, who are now living. Several of these children have minor children, who with said eight children are made parties. Mrs. St. John's death has been suggested upon the record, and the administrator of her estate has entered an appearance.

The probate court admitted to probate the will of Mr. St. John, and all of the eight children appealed from this order and decree. On that appeal no evidence was submitted to the superior court. The parties to the appeal stipulated that the only questions to be determined were whether or not the whole or any part of section 7 of the will was void under the law against perpetuities, and whether the gift therein of the income to the children of the testator, without limitation, passed an absolute estate in the property in question to such children.

The will of Mr. St. John gave to his wife all the personal property and effects in his homestead, and provided that she should have the use and enjoyment of the homestead free of rent and all other charges until it should be sold. It directed the executor to sell this real estate as soon as such sale could be advantageously made. The proceeds of this sale as designated in paragraph second, and of certain personal property specifically designated in paragraphs fourth and fifth, and all the rest, residue, and remainder of the testator's estate, was then given to the plaintiff in trust. By the terms of the trust, defined in the seventh paragraph, the trustee was directed to pay to his wife during her life, in full of all dower and rights she might have in the testator's estate, certain sums of money in quarterly payments. This direction was supplemented by the following:

"And after the decease of my said wife, to pay the net income from my trust estate equally to my children [names given] annually, and to their heirs forever, free from the control of the husband of any of my said children; and if any of my said children should die without leaving lawful issue then and in such event I direct that the share of such child so dying in and to the income from my said trust estate shall be distributed among and paid to my surviving children and their heirs in equal proportions; the heirs of any child so dying to take the share which their parent would have been entitled to receive if living."

The eighth paragraph was as follows:

"To the end that there may be no wasting of my estate by litigation pertaining thereto, I hereby declare, and it is my will, that any provision made herein in favor of my wife and of any of my children, shall, as to my said wife or as to such children, be null and void in the event of any one of them presenting any claim against my estate, or in any way contesting the probate or operation of this my will, or in any way seeking to set aside or annulling this my said will; and in such event, the provision for the payment of income to my said wife, or for the payment of income to such child, as the case may be, by this paragraph of my said will made null and void, shall be held by my said trustee for the benefit of the remaining beneficiaries under this will, and increase their several shares in like proportion as to income as is herein provided."

Judgment was rendered in the superior court, affirming the action of the probate court and refusing to pass upon the questions of construction. The questions upon which advice is desired are the following:

"(a) Whether any legal effect can be given to any part of the fourth, fifth, and seventh paragraphs of said will, and, if so, what; and whether or not all or any part of said sections are or are not void; and whether any portion of the purposes contemplated by said sections can be made legally operative?

"(b) Whether the trusts made or which it was contemplated or attempted to be made or to make in said sections are valid, legal, and operative, and capable of being carried out in any legal manner, and, if so, how; and whether the trust estates created thereby, or which it was attempted to create, are now valid and subsisting estates; and whether the provisions for accumulation therein contained are legal and valid provisions, and, if not, whether the other provisions of said sections are thereby rendered inoperative and void?

"(c) Whether the provisions of said sections suspend the power of alienation for more than two lives, either actually or by possibility; and whether, if said power of alienation be suspended for more than two lives, the trusts which the testator sought to create are thereby rendered inoperative and void?

"(d) Whether the trusts, which it was sought to create by said sections, are or are not void for uncertainty, indefiniteness, and a failure of the object of the testator's bounty?

"(e) Whether or not the defendants, or any of them, and, if so, who, have violated the eighth paragraph of said will by contesting the probate or operation of said will, or have sought to set aside or annul said will, and, if so, whether or not the provisions in said will in favor of such defendants are null and void; and whether or not such defendants have forfeited their right, title, interest, and claim in and to said estate by violating said paragraph 8, and, if so, to whom the estate of said deceased, and the income therefrom, should be paid?"

Joseph R. Taylor, of South Norwalk, for plaintiff. John H. Light and Freeman Light, both of South Norwalk, for defendant Bertha E. St. John and another. Thomas C. Coughlin, of Bridgeport, for defendant Clifford M. St. John and others. William F. Tammany, of South Norwalk, for defendant Oscar B. St. John.

WHEELER, J. (after stating the facts as above). One of the questions submitted for our advice is whether or not the children of the testator have forfeited their claim to the estate by having violated paragraph eighth, and, if so, to whom the estate and the income should be paid. If the eighth paragraph be valid and literally interpreted, and the children have violated it, they have forfeited their claim to any part of this estate. The consideration of this question should precede all other questions, for, if the children have forfeited their claim to this estate, so far as they are concerned, consideration of other questions under the will is academic.

The appeal from the court of probate took up to the superior court the special statutory issue, whether the will was a valid will. That was the sole issue of the appeal. St. Leger's Appeal, 34 Conn. 434, 447, 91 Am. Dec. 735. The parties subsequently, in a very apparent attempt to avoid the consequences of having contested the will, stipulated that the only question to be determined upon the appeal was as to the construction of paragraph 7. Counsel for the trust company in his brief persists in assuming the existence of this wholly artificial position, but the counsel for the children frankly admit the real situation in their brief when they say:

"The widow and all of the children joined in an appeal from the order and decree of the court of probate for the district of Norwalk admitting the will to probate, on the ground that the testator was of unsound mind when the will was made and esecuted, but they afterward came to feci such a dread of the consequences which would follow from legally establishing the mental incapacity of the testator that they instructed counsel not to pursue that feature of the case, and, instead, to have the court determine the legality of the trust created by the will."

Two things are to be noted about this statement: (1) It is an inaccuracy to state that the widow joined in this appeal. (2) Counsel seek to bring the case within one of the exceptions which some jurisdictions sustain, to the general rule supporting forfeiture clauses of the character of that in this will, by assuming that there exists probabalis cause litigandi.

The appeal was an attack upon the validity of the will, and the subsequent effort of the children to conceal this purpose must fail. The children by their appeal engaged in an act which the testator attempted to penalize by prescribing a forfeiture of the interest given them by his will. Substantially all...