South Norwalk Trust Co. v. White

• Decision Date: 08 May 1959
• Citation: 152 A.2d 319,146 Conn. 391
• Parties: SOUTH NORWALK TRUST COMPANY, Executor (Estate of Elias K. White), v. William J. WHITE et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 319

152 A.2d 319

146 Conn. 391

SOUTH NORWALK TRUST COMPANY, Executor (Estate of Elias K. White), v. William J. WHITE et al.

Supreme Court of Errors of Connecticut.

May 8, 1959.

Gregory C. Willis, Bridgeport, with whom was Howard W. Benedict, Westport, for appellant (defendant Robert F. Gammon, administrator).

Leslie N. Davis, Norwalk, for appellees (defendant Carl J. White et al.), with whom were Robert M. Dowling, Meriden, for appellees (named defendant et al.), Joseph M. Kaufman, Westport, for appellees (defendants Kelley et al.), and, on the brief, J. Richard Fay, Norwalk, for appellee (defendant Harry C. White).

Harold E. Drew, Derby, for appellees (defendant Ida M. Williams, administratrix, et al.).

William R. Curtis, Norwalk, for plaintiff.

Before BALDWIN, KING, MURPHY, MELLITZ, and SHEA, ^* JJ.

BALDWIN, Associate Justice.

The testator, Elias K. White, died a resident of Norwalk on May 16, 1924. His will, executed on April 2 in that year, was admitted to probate and the plaintiff was qualified as executor and trustee.

The will created a trust of the residue. It directed the trustee to pay to the testator's widow, Ella L. White, and to his son, Effinger C. White, $1200 a year each from the income of the trust fund, in equal quarterly instalments during their respective lives. The trustee was to retain the balance of the income and add it to the principal until the principal reached $100,000. The trustee had the power in its judgment to invade the principal for payments to the widow or the son for necessities which illness or other good cause required. After the principal reached $100,000, one-half of the income was to be paid to the widow and the other half to the son, during their respective lives, in equal quarterly instalments. If the widow predeceased the son, he was to have the income provided for her. If the son predeceased the widow, the income provided for him was to be added to the principal of the trust. The particular provision which gives rise to this action is the one which disposes of the principal of the trust after the death of both the widow and the son. It reads as follows: 'Upon the deaths of my said wife and my said son, I direct that said trust shall cease; and I hereby give and bequeath all that shall then remain of said trust fund, both principal and income to the lawful issue of my said son, Effinger C. White, to be equally divided among them, share and share alike, excluding, however, from the operation hereof, his present living issue; my determination being that no issue of my said son up to the time of the execution of this will shall partake in my estate. In the event that my said son shall die without leaving lawful issue competent to inherit my estate under the provisions hereof, then and in that event, I direct that my estate shall be lawfully divided among my legal heirs, exclusive of the lawful issue up to this time of my said son, 'per stirpes' and not 'per capita."

When the testator made his will and when he died, his wife, Ella, was living. At those times, his only child was Effinger C. White, born in 1888 of a prior marriage of the testator to Eliza W. White, deceased. Effinger died in 1926. He had a son, known as William J. White, born in 1916, who is the father of two children, Judith A. and Suzanne M. White, both of whom were born long after the testator's death. These three are the testator's only living direct descendants and are defendants in this action. Surviving the testator were three brothers, three sisters and two nephews, the children of a sister who had predeceased the testator. Their legal representatives and their heirs or the legal representatives of them are defendants in this action. Ella L. White, during her widowhood, married Charles B. Downie and died intestate in 1954. With her death the trust came to an end. Her administrator, Robert F. Gammon, is a defendant and the appellant in this action. The parties, apart from Gammon, have entered into a stipulation concerning the judgment to be rendered.

The will gave the principal of the trust fund, after the expiration of the life uses, to the lawful issue of the testator's son, Effinger, but deliberately excluded Effinger's 'present living issue,' that is, William J. White. It then provided that if Effinger died without other issue, the estate should be divided among the testator's other legal heirs, per stirpes and not per capita. On the theory on which the case was tried and is now presented to us on appeal, our consideration of it is limited to the single question whether the widow was an heir within the meaning of this provision of the will. The administrator of the testator's widow claims that the will is plain and unambiguous and passes the residue to the heirs of the testator under the applicable statutes relating to the distribution of intestate estates (Rev.1918, § 5061; Public Acts 1921, c. 221) and that, the widow having survived the son, and the son's 'present living issue' having been excluded, she acquired a vested interest and therefore is the testator's sole heir.

When a testator gives a life use with the remainder over to his heirs or next of kin or other class, it is presumed that he intended to exclude from such class the one to whom the life use was given unless a contrary intent is manifest in the language of the will. Kimberly v. New Haven Bank N.B.A., 144 Conn. 107, 115, 127 A.2d 817, and cases cited. The reason for this rule is that, the testator having given a limited interest in...