Case
Reserved from Superior Court, Fairfield County; Isaac Wolfe
Judge.
Action
by the Stamford Trust Company, trustee, against Charles D
Lockwood, administrator, and others to determine the
construction of a will, and trust agreement, brought to the
superior court, and reserved for the advice of this court on
the statement of facts set forth in the complaint and
admitted by the several answers of the defendants. Questions
answered.
On
April 21, 1907, Andrew J. Bell, of Stamford, died, leaving a
will executed April 15, 1901, modified and confirmed by three
codicils dated, respectively, March 21, 1902, August 8, 1904
and December 5, 1906. By the original will the testator left
his entire estate to the plaintiff trust
company in trust for the following purposes:
" Said the Stamford Trust Company shall hold, manage
invest and reinvest said property assigned and paid over to
it as above provided, in trust for the following uses and
purposes, to wit: Out of the net income of said estate and
fund to pay to my wife, Maria Bell, at convenient stated
periods, the sum of six hundred ($600) dollars, annually, and
any excess of income over and above said last named sum, and
after the death of my said wife, all of said income, to
divide and pay over as follows: To my son Harry Bell
one-fourth thereof, to my daughter Georgianna Hecker
one-fourth thereof, to my daughter M. Louise Vincent
one-fourth thereof, to my granddaughters Jessie Borden and
Florence Bell, each one-eighth part thereof, to all of said
persons during the term of their natural lives. Upon the
death of either of my said children or grandchildren, to pay
over to the lawful issue of such child or grandchild such
portion of the principal of said fund, as such child or
grandchild shall have had the income from during life as
above provided. In case either of my said grandchildren shall
die without lawful issue her surviving, the one-eighth part
held for her benefit, as aforesaid, shall pass and belong to
the survivor of them, to receive the income during her life
and the principal, shall be paid, to her lawful issue, as
above provided. In case both of said grandchildren shall die
leaving no lawful issue them surviving, then such share of
the principal as would have been paid to their issue shall be
equally divided between and among the lawful issue of said
Harry Bell, Georgianna Hecker and M. Louise Vincent, per
stirpes."
Other
provisions of the will and codicil are not material, except
in paragraph 2 of the second codicil:
" 2. I hereby revoke and annul the provision made for payment of income in the second article of my
said will to my granddaughter, Florence Bell, and direct that
she shall receive no portion whatever of principal or income
of my estate, either directly or by reason of failure of
issue on the part of her sister Jessie Borden, but shall be
and remain with no share or interest whatever in my estate.
The portion given to her in my said will shall inure to and
be divided among the other legatees in said article named
(except my said wife) thereby increasing pro rata the shares
of the said other legatees; that is to say, the share of
Harry Bell, Georgianna Hecker, M. Louise Vincent and Jessie
Borden shall each be increased by a proportionate part of the
total of said income in the ratio of their shares as
originally given each of them in said article of my will; and
in like manner the principal fund directed to be paid to
their respective and several issue shall be increased in like
proportion."
On
August 1, 1904, just before the execution of the second
codicil, the testator transferred to the plaintiff trust
company certain property upon trusts in all respects
identical with those expressed in the will as modified and
confirmed by the second codicil. The statement of material
facts set forth in the complaint and admitted by the several
answers of the defendants is as follows:
" (7) At the time of the execution of said will the
following children and grandchildren of the testator
interested under said will were living, to wit: Georgianna
Hecker, M. Louise Vincent, and Harry Bell, children of said
deceased; Jessie Borden, daughter of Edward M. Bell, a
deceased child; John Hecker, Frederick C. Hecker, George
Hecker, Louise B. Falls, also known as Louise B. Hecker, and
Genevieve T. Stout, children of Georgianna Hecker; Russell G.
Griswold, Harry E. Griswold, and May L. Wilson, children of
said M. Louise Vincent; Arthur W. Bell, Andrew
J. Bell (thereinafter designated as ‘ Andrew J. Bell,
2d’ ), and Gertrude Lockwood, children of said Harry
Bell; Charles Hecker Stout, child of said Georgianna T.
Stout; Genevieve Hecker, daughter of John Hecker; and
Gertrude Borden and Doris Borden, children of said Jessie
Borden.
" (8) At the death of said testator said Harry Bell,
Georgianna Hecker, M. Louise Vincent, and Jessie Borden and
their descendants named in paragraph 7 hereof were all
living, and are still living, except M. Louise Vincent,
Andrew J. Bell, 2d, and Harry Bell, who have since deceased.
" (9) Since the death of said testator the following
descendants have been born, to wit: Gladys Bell, daughter of
Andrew J. Bell, 2d, Sidney H. Wilson, Muriel L. Wilson, and
Evelyn M. Wilson, children of said May L. Wilson; Charles
Davenport Lockwood, Jr., Walter B. Lockwood, and Barbara E.
Lockwood, children of Gertrude B. Lockwood; Arthur W. Bell,
Jr., Gertrude Bell, and Dorothy J. Bell, children of said
Arthur W. Bell; and John Martin Stout and Bettina Stout,
children of said Genevieve Stout, all of whom are living.
" (10) Maria Bell, widow of said testator, died April 8,
1914.
" (11) On the 16th day of March, 1916, said Harry Bell
resigned as executor, and Charles D. Lockwood, named in said
will as executor, but who had theretofore declined to act, on
the 25th day of March, 1916, qualified as executor, was
approved by the court and has ever since acted as such.
" (12) All the debts of said estate have been paid and
the expense of the settlement thereof, and nothing remains to
be done other than the administration of said trusts.
" (13) On May 23, 1918, M. Louise Vincent
died, and said trustee thereupon paid over to her three
children, Russell G. Griswold, Harry E. Griswold and May L.
Wilson, in equal shares, such portion of the principal fund
as the said M. Louise Vincent had the income from during her
life as provided in said trusts, but paid nothing to Sidney
H. Wilson, Muriel L. Wilson, and Evelyn M. Wilson, children
of said May L. Wilson, believing said word ‘
issue’ in said trusts to mean children of the life
tenants.
" (14) On January 20, 1920, Andrew J. Bell, 2d, son of
Harry Bell, died intestate, leaving issue, to wit, a child,
Gladys Phillips, and a widow, Minnie Adele Bell, and as his
heirs at law his parents, Harry Bell and Alice B. Bell, and
on the 17th day of February, 1920, Charles D. Lockwood was
duly appointed administrator of his estate, and is now acting
as such.
" (15) On May 6, 1913, and before the death of said
Andrew J. Bell, 2d, the said Andrew J. Bell, 2d, and Elsie P.
English, formerly Elsie B. Bell, parents of Gladys Bell,
entered into an agreement with John B. Phillips and Louise
Phillips of the town of Stamford, under the statute, by which
said Gladys Bell was given in adoption to said John B.
Phillips, and which said agreement was approved by the court
of probate for the district of Stamford on the 13th day of
May, 1913, as appears by the files and records of said court,
and she now is, and since said May 13, 1913, has been, the
legally adopted daughter of said John B. Phillips.
" (16) On April 13, 1921, said Harry Bell died leaving
as his heirs at law Gertrude B. Lockwood and Arthur W. Bell,
and leaving also the following grandchildren: Gladys
Phillips, minor child of said Andrew J. Bell, 2d, deceased
(the adopted daughter of said John B. Phillips), Charles
Davenport Lockwood, Jr., Walter B. Lockwood,
and Barbara E. Lockwood, minor children of Gertrude B.
Lockwood; and Arthur W. Bell, Jr., Gertrude Bell, and Dorothy
E. Bell, minor children of said Arthur W. Bell-and the
plaintiff is now ready, subject to the direction of this
court, to distribute that portion of the estate of Andrew J.
Bell of which the said Harry Bell during his lifetime
received the income to the persons entitled to receive the
same.
" (17) On April 15, 1921, Arthur W. Bell and Charles D.
Lockwood were appointed administrators of the estate of said
Harry Bell and then qualified and have ever since acted as
such.
" (18) The defendants are all of the descendants of the
testator who are or may be interested under said will and
trust agreement."
The
questions upon which the trustee and the defendants desire
the advice of this court are:
" First. Whether or not the term ‘ lawful
issue’ as used in paragraph 2 of said will, in
paragraph 2 of said second codicil, and in said trust
agreement, shall be construed to mean children of said life
tenants or issue of every degree.
" Second. If said term ‘ lawful issue’ be
construed to mean descendants or issue of every degree
whether such issue or descendants take per stirpes or per
capita.
" Third. If said term ‘ lawful issue’ be
construed to mean descendants or issue of every degree per
stirpes, whether or not parents and children of each stirp
take per capita among themselves.
" Fourth. Whether in making distribution among the
descendants of Harry Bell the principle of representation
applies, or whether each of the children of a living parent
take equally with and in competition with such parent and
with the brothers and sisters of such child.
" Fifth. Who are entitled to said remainder estate upon
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