West Haven Bank & Trust Co. v. McCoy

• Citation: 117 Conn. 489,169 A. 49
• Parties: WEST HAVEN BANK & TRUST CO. et al. v. McCOY et al.
• Decision Date: 07 November 1933
• Court: Supreme Court of Connecticut

169 A. 49

117 Conn. 489

WEST HAVEN BANK & TRUST CO. et al. v. McCOY et al.

Supreme Court of Errors of Connecticut.

November 7, 1933

Appeal from Superior Court, New Haven County; Carl Foster, Judge.

Action by the West Haven Bank & Trust Company, conservator of Laura B. Hubbard and administrator d. b. n. c. t. a. of the estate of John M. Hubbard, deceased, against David J. McCoy executor of the will of Laura B. Hubbard, and others, for a declaratory judgment involving the construction of the will of John M. Hubbard, brought to the superior court and tried to the court. Judgment in favor of the administrator, from which the executor appeals.

No error.

Richard T. Mokrzynski, of New Haven, for appellant McCoy.

Curtiss K. Thompson, of New Haven, for appellees John B. Hubbard et al.

John H. Weir, of New Haven, for appellee Clarence D. Hubbard, administrator.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

HAINES, Judge.

The will of John M. Hubbard of Orange in this state, who died in 1916, provided for his widow Laura B. Hubbard in the fifth paragraph thereof, as follows: " I give my beloved Laura full use and control of all the remainder of my property real and personal, principal and income, during her natural life. Whatever remains unexpended at her decease, I wish to be divided equally among my own nephews and nieces, the descendants of my own father and mother."

There were no children. The widow was named as executrix of the will. The entire estate consisted of real estate inventoried at $4,120, and personalty inventoried at $6,720.11, a total of $10,840.11. After carrying out other provisions of the will and filing her administration accounts in the court of probate she took the balance of the estate into her personal possession.

In February, 1930, a conservator was appointed for Laura B. Hubbard, and she died in November, 1930, leaving a will, of which the present appellant, McCoy, was named as executor.

The nephews and nieces of John M. Hubbard claim that certain items of property which were inventoried as a part of the estate of Laura B. Hubbard belong to the estate of John M. Hubbard, being the unexpended portion thereof in the hands of Laura at her death.

The questions thus raised involve the determination of the legal effect of that portion of the will of John above quoted. The appellees contend that by those provisions the widow took only a life estate with a limited power of disposition, while the appellant claims she took a fee in the real and an absolute estate to the personal property, which constituted the residuary estate of John. They also make the alternative claim that if Laura took only a life estate, yet that portion of the income which remained unexpended at her death became a part of her estate.

The trial court reached the conclusion that all the estate of John, both principal and income, which remained unexpended in the hands of Laura at her death, belonged to the estate of John M. Hubbard and passed to his nephews and nieces at her death under the terms of his will above quoted.

At least two rules of testamentary construction are at once suggested by the language of the paragraph in question. One is that it must be so read as to harmonize so far as possible with the other provisions of the will and carry out the underlying intent of the testator as disclosed by the entire will. Another rule is that in case of doubt that construction shall be adopted which conforms most nearly to our statute of distributions and avoids disinheriting the natural objects of the testator's bounty. Cumming v. Pendleton, 112 Conn. 569, 574, 153 A. 175; Mooney v. Tolles, 111 Conn. 1, 9, 149 A. 515, 70 A.L.R. 608; Ansonia National Bank v. Kunkel, 105 Conn. 744, 753, 136 A. 588.

The disadvantage under which the appellant labors is that the construction for which he contends requires that certain portions of this paragraph of the will be held of no effect, essentially surplusage. If the intent of the testator is held to give the widow a fee in the real estate and an absolute title to the personalty, the words " during her natural life" must be entirely disregarded; and we must also treat as inoperative the entire second clause, " whatever remains unexpended at her decease I wish to be divided equally among my own nephews and nieces, the descendants of my own father and mother," with the result that those who are found by the trial court to be the sole heirs of the testator, and the natural objects of his boundary, are to be disinherited in favor of the beneficiaries named in the widow's will, who may be strangers to his blood. This result, so at variance with the meaning of the testator's words, should not be permitted unless the language used in providing for the widow compels that conclusion.

It is the appellant's contention that the giving of the " full use and control" of all the residuum to the widow cannot be other than the passing of an absolute and complete title.

If it were conceded that, under certain circumstances, and where it was consistent with an intent found in other parts of the will, these words might be adequate to pass such a title, we still could not say that as here used they necessarily do so. One may use and control property, without the power to transfer the absolute title thereto to others by sale or gift. The word " control" as ere employed does not suggest any broader leaning than " use," which has a recognized significance and is commonly employed in the reaction of life estates. Evans' Appeal, 51 Conn. 435, 438. Moreover, the " full use and control" is here limited in the very sentence which grants it-" during her natural life." That conclusively negatives an intent that it should continue thereafter and permit the fund to pass to others by her will.

In Brown v. Potter, 114 Conn. 441, 159 A. 275, the testator gave, devised, and bequeathed the entire residue of his estate to his wife " to be used and enjoyed by her as her own proper estate, and with full power to use, enjoy control and dispose of the same in any manner except by will," and provided that upon her death all the estate...