Willis v. Hendry
| Decision Date | 05 December 1941 |
| Court | Connecticut Supreme Court |
| Parties | WILLIS et al. v. HENDRY et al. |
127 Conn. 653
WILLIS et al.
v.
HENDRY et al.
Supreme Court of Errors of Connecticut.
Dec. 5, 1941.
As Amended May 8, 1941.
[Copyrighted material omitted.]
Case Reserved from Superior Court, Fairfield County; John Rufus Booth, Judge.
Action by George S. Willis and others, trustees under the will of Friend A. Russ, deceased, against Elizabeth G. Hendry, executrix, and others for the construction of the will of Friend A. Russ, deceased. Reserved by the superior court for advice of the Supreme Court of Errors.
Questions answered in accordance with opinion.
Argued before MALTBIE, C. J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.
William F. Healey, of Derby, for plaintiffs.
Joseph L. Melvin, of Stamford, for named defendant and another.
Edward J. Donahue, of Derby, for defendants Carrie A. Rice and others.
Louis Weinstein, of New Haven, for defendants Ada S. Russ and others.
Harold E. Drew, of Derby, for defendant Griffin Hospital and another.
MALTBIE, Chief Justice.
In this case the trustees under the will of Friend A. Russ are seeking its construction and advice as to their duties. The relevant portions of the will are summarized in the footnote.1 In all, some thirty-seven questions are propounded in
the reservation and many of these are predicated upon future contingencies which may never arise. Thus several questions are asked as to the right of the trustees to lease the premises referred to in the fourth article of the will, which the testator's wife is given the right to occupy but which, if she so elects in writing, are to be sold. She now occupies the premises and nothing in the record indicates that she does not intend to continue to do so. Several other questions concern the rights of the wife of the testator's son John under subdivision "C" of the ninth article; her rights are predicated upon her surviving his death, and whether she will survive or not of course cannot be known. It is not the function of this court to give advice as to contingencies which may never happen, where there is no apparent present need of so doing. Russell v. Hartley, 83 Conn. 654, 665, 78 A. 320; Holmes v. Connecticut Trust & Safe Deposit Co., 92 Conn. 507, 512, 103 A. 640, L.R.A.1918E, 368; Gorham v. Gorham, 99 Conn. 187, 195, 121 So. 349; Foley v. Hastings, 107 Conn. 9, 16, 139 A. 305; see Moeller v. English, 118 Conn. 509, 513, 173 A. 389. We shall, therefore, confine our consideration to such questions as are properly presented upon the statement of facts and as to which there appears some present need for their determination.
We are asked whether it is the duty of the trustees to insure the premises given to them in the fourth article against loss by fire, and, if so, whether the premium should be apportioned between the widow and the remaindermen. It is the duty of the trustees to exercise that care and prudence which an ordinarily prudent person would who was entrusted with the management of like property for another. Reiley v. Healey, 122 Conn. 64, 71, 187 A. 661. It is today a general custom among prudent business men to insure buildings in their charge against loss by fire; and ordinarily it is the duty of trustees holding property for remaindermen to see that such provision is made. Garvey v. Owens, 58 Hun 609, 12 N.Y.S. 349, 350; Re Gamble, 57 Ont.L.R. 504; Restatement, 1 Trusts, p. 452; 2 Scott, Trusts, p. 933; 3 Bogert, Trusts and Trustees, § 599, p. 1904. We are not informed of any facts in this case which would make inapplicable this rule. The premises are not to become a part of the residuary trust in the will until the widow dies, and, so long as she occupies them, the trustees are without any income from the property with which to pay such charges. The apparent intent of the testator was that the widow should bear all ordinary charges incident to the maintenance of the property so long as she lives on it, and the word "upkeep" is to be so construed. This case is not like Central Hanover Bank & Trust Co. v. Nesbit, 121 Conn. 682, 689, 186 A. 643, for there the trustees were specifically charged with the payment of insurance premiums as well as the ordinary expenses for "upkeep." In the absence of any facts taking the case out of the general rule, we advise that it is primarily the duty of the widow to insure the buildings; but if she fails to do so, the trustees should insure them and charge the premiums against her. Should the term of any policy run beyond the life of the widow, the portion of
the premium representing the period thereafter would be a charge upon the trustees and the widow's estate would be entitled to reimbursement to that extent.
Most of the questions propounded arise under the ninth article of the will, and outstanding among them is the question whether the executors and trustees should set up separate trust funds out of the proceeds of each of which the gifts of income should be paid. The provisions of this article make it obvious that the testator was thinking primarily in terms of income. It is only when the specific gifts of income can no longer operate that his mind appears to have turned to the disposition of the fund or funds from which that income is to be derived. He clearly did not think through the method by which this purpose was to be accomplished. He undoubtedly had a more or less indefinite thought that the residuary estate should be divided into separate parts, with a view to producing the gifts of income he made to each of his beneficiaries.
But it is noticeable that nowhere in this article is there any express direction that the executors or trustees shall set up separate trusts from which the income is to be paid; it is noteworthy that, in making the gifts to his wife and son, it is 30 per cent of the entire income which he gives, not the income of 30 per cent of the estate; and there are provisions which indicate that the thought he had was at best unformed. He clearly did not visualize certain results not consonant with his dominant purpose which might follow from a division of his estate into separate funds. Thus in the case of the gifts of income in subdivision "A" there can be no doubt that the testator meant that each of the persons named should get each year the exact sum given them, subject only to a possible reduction in the event "that the income of the entire estate should fall below $55,000." Yet it may be if a separate fund were created from the income of which each of the payments was to be made, a fall in the income of the fund might prevent full payment to the beneficiary, and, on the other hand, if the income of such fund should exceed the amount of the payment fixed, there is no provision in the will for the disposition of that excess; and in the case of the gifts to the wife and son of 30 per cent of "the entire net income," the amount which they would receive from a separate fund set up for each would almost surely fluctuate from year to year and it would be extremely difficult, if not impossible, for the trustees to set apart at the settlement of the estate an amount which would produce the income to which each was entitled. In both these provisions if the income from the portion set apart to provide for these gifts exceeds the amounts given, no specific provision is made for the disposition of the excess and it would be left to pass under the gift of "the entire remainder of said income" to the daughter.
The provisions of the eleventh article, as to which we are asked some questions, are significant with reference to the matter we are discussing. In that article he directs his executors to pay from his estate all transfer or inheritance taxes which may be imposed upon any "devise, legacy or annuity herein contained" and provides that they are not to be payable to or paid by any "devisee, legatee or annuitant herein named," and, further, that the trustees' commissions and expenses shall not be charges upon any of the "annuities or bequests hereinbefore mentioned but paid from my estate." In the portion of the will preceding the ninth article, aside from provisions concerning the cancelation of sums owed to him by his son and daughter by the application of collateral which he held, he makes a few relatively small bequests, one to a nephew and the others to persons apparently not related to him. It is very unlikely that he would intend to free these beneficiaries from the charges mentioned in the eleventh article but impose them upon the share of his estate which he gave to his wife, son and daughter. In determining whether the gifts to the "annuitants" should be reduced he speaks of the total "net income" of the estate and similarly in the gifts to his widow and son he gives to each a percentage of the "entire net income." Again he expressly provides that the small "annuities" created by subdivision "A" of the ninth article should not bear those charges and it would not be natural for him expressly to exclude the small gifts to these "annuitants" but leave them to be met from the portion of his estate given to his wife, son and daughter. It is to be noted, also, that in subdivision "A" of the ninth article he refers to the "annuities" as "bequests." All the provisions by way of legacy or bequest before the ninth article would be at once payable and the commissions and expenses of the trustees under the trust, which might run on for many years, could not have been intended
to be imposed upon them. Such commissions and charges would ordinarily be payable from income, not principal; Bridgeport-City Trust Co. v. First National Bank & Trust Co., 124 Conn. 472, 200 A. 809, 117 A.L.R. 1148; see General Statutes, Cum.Sup.1935, § 1301e; and the use in this article of the words "paid from my estate" means no more than that they are charges against the estate as a whole rather than against any parts of or interest in it which are given to particular...
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