Wolfe v. Hatheway

• Decision Date: 03 August 1908
• Citation: 70 A. 645,81 Conn. 181
• Court: Connecticut Supreme Court
• Parties: WOLFE v. HATHEWAY et al.

70 A. 645

81 Conn. 181

WOLFE

v. HATHEWAY et al.

Supreme Court of Errors of Connecticut.

Aug. 3, 1908.

Case reserved from Superior Court, Fairfield County; William S. Case, Judge.

Action by Charles H. Wolfe, trustee, against Clara T. Hatheway and others for the construction of the will and codicil of Amanda B. Trulock, deceased. Facts found and questions of law reserved. Questions answered, with directions to render judgment.

Amanda B. Trulock, late of Bridgeport, died August 20, 1891, leaving a considerable estate, both real and personal, a will, executed March 13, 1883, and a codicil thereto, executed November 23, 1889, both duly probated. She was survived by four sons, Nichols B., J. Burton, James H., and Marshall S., who, with Clara T. Hatheway, a daughter of a deceased daughter, were her only heirs at law. Nichols B. and Marshall S. still survive, as does Clara T. Hatheway. James H. died in 1907, leaving a widow and four children. Marshall S. has a wife and one child. The dates of the marriages of these two sons are not given in the record, although it would appear that James H. was married long before the testatrix's death and the making of her codicil. No grandchildren have yet been 'born to either of these sous. The will created a trust in favor of Clara T. Hatheway, bequeathed her the testatrix's wearing apparel and jewelry, and then gave all the rest of her estate to the four sons "to be divided equally between them and to their heirs and assigns forever." The codicil was as follows: "Whereas, by my last will and testament, dated March 13, 1883, in article fourth I gave and bequeathed the rest of my estate, real and personal, to my four sons, Nichols B., Joseph B., Marshall S., and James H. Trulock, to be divided equally between them and to their heirs and assigns forever, I do hereby revoke that part of this article fourth which gives to my sons Marshall S. and James H. Trulock absolutely one-fourth of my residuary property to each, and instead thereof, I do hereby give and bequeath the sum of one thousand dollars absolutely to each, and the remaining one-half of my residuary estate to my sister, Marcia Beardsley, and to my friend, Lucinda T. Mont gomery, in trust; whom I hereby request, as they may deem necessary for counsel, to call upon Morris B. Beardsley, Esq., or B. B. Beardsley, my brother, both of this city of Bridgeport, Ct., and I hereby direct that the income of the said one-half of my residuary estate be paid equally to my two sons, Marshall and James H. Trulock, semiannually, as long as they may live and at the death of either or both, to their heirs at law respectively. One-half of said half to Marshall S. Trulock's heirs and the other half to James H. Trulock's heirs, and I hereby direct that at the death of their wives and all the children of the said Marshall S. and James H. Trulock, that the said property may be given directly and equally to their grandchildren, whenever they may become of age and whenever or as soon as in the judgment of the said trustees or their suecessors with their advisor, they may think best, and I hereby request that no bond be required of my sister, Marcla Beardsley, and Lucinda T. Montgomery, as trustees, but a bond should be required of their successors." The estate was duly settled and final account accepted August 25, 1892. By this account the residue of the estate was shown to be $109,707.77, all in personalty. Distribution followed, wherein the sum of $27,420.94 was set out to the trustees named in the codicil as trustees for the benefit of James H. Trulock and others, and a like sum in like manner for the benefit of Marshall S. Trulock and others. Said trustees accepted said trusts and qualified. April 8, 1901, they resigned, and on April 13, 1901, they were succeeded by the plaintiff, who qualified and is now acting. Other facts found, not being involved in the opinion of the court, need not be rehearsed.

Morris B. Beardsley and Samuel F. Beardsley, for plaintiff.

Alfred B. Beers, for defendant Amanda L. T. Curtis.

PRENTICE, J. (after stating the facts as above). The questions presented arise out of the ambiguous language which the testatrix used in the inartiflcially framed codicil to her will. The principles which are to be observed in interpreting the Instrument are familiar ones. The cardinal rule that the intent of the testator is to be sought after and carried into effect, if that intent can be discovered, has been sufficiently expressed and is not contrary to some positive rule of law. Allyn v. Mather, 9 Conn. 114, 125; Mathewson v. Saunders, 11 Conn. 144, 149; Jackson v. Alsop, 67 Conn. 249, 252, 34 Atl. 1106; Chesebro v. Palmer, 68 Conn. 207, 213, 36 Atl. 42. In the search for the Intent of the testator, all parts of the will are to be taken into consideration. Allyn v. Mather, 9 Conn. 114, 125. And they are to be examined in the light of the circumstances which surrounded the testator when he made it. Ruggles v. Randall, 70 Conn. 44, 48, 88 Atl. 885. The question is, not what did the testator mean to say, but always what did he say. Weed v. Scofield, 73 Conn. 670, 676, 49 Atl. 22. If a leading feature of a will is equality or impartiality, the courts will lean, in case of a doubtful clause, to such a construction as will carry out the scheme of equality. Farnam v. Farnam, 53 Conn. 201, 289, 2 Atl. 325, 5 Atl. 682; Wheeler v. Fellowes, 52 Conn. 238, 241. The meaning of language used cannot be determined by an arbitrary rule of legal definition, but depends in each case on the peculiar provisions and character of the special will in question, which must to a large extent be its own interpreter. Chesebro v. Palmer, 68 Conn. 207, 213, 36 Atl. 42. While there is a presumption that the testator used language in its usual and legal sense, this presumption will be overthrown when an examination of the instrument in the light of the surrounding circumstances clearly shows that the intent of the testator will not be effectuated by so interpreting it, and that the...