Opinion
Estates given by will will be regarded as vesting immediately, unless the testator has by very clear words manifested an intention that they should be contingent upon a future event. Where the future event of the death of the life tenant is annexed to the time of payment or transfer of the remainder, a remainder gift to the children of the life tenant is a gift to a class vesting in point of right at the death of the testator or as soon as one of the children is born, unless the will expresses a contrary intent, although their right to possession is postponed until the termination of the life estate. The testator gave in trust for each daughter the use for life of a one-sixth share of the residue of his estate and then directed his trustees to pay over and deliver the principal of each share at the death of each daughter to her children to be equally divided between them, with gift over in case of any daughter dying without children. A daughter M had three children, but one of them, D, predeceased her, leaving a husband and son. Held: 1. That D's son cannot take under the will of the testator as a grandchild of M but must take, if at all, through the estate of his mother. 2. That since there was nothing in the will manifesting a contrary intent, the remainder interest vested in the children of each of the testator's daughters as a class at the birth of the first child, and therefore the interest vesting in D at her birth was alienable and transmissible by will or inheritance. 3. That D was not excluded from the class by her death before the time for the enjoyment of the gift, and her interest passed to her son, any other construction being contrary to the testator's plan of a per stirpes equality.
Argued June 12th, 1930
Decided July 31st, 1930.
SUIT for the construction of a will, brought to the Superior Court in New Haven County and reserved by that court ( Simpson, J.) for the advice of this court.
Winston J. Trowbridge, a resident of New Haven, died November 6th, 1864, leaving a will dated October 10th, 1864, which was duly probated. He left surviving him three sons and three daughters. The will made certain provisions for his wife and a few bequests of specific items of personal property and then provided: "All the rest and remainder of my Estate of every kind and description . . . I give bequeath to my Three Brothers . . . in trust . . . for the purposes following, viz. The said Trustees shall manage and invest the same at their discretion, hold the same for the equal benefit of my Six Children, Mary L., Winston J., Florence Maude, Frank Dean, Elford Parry, Constance, and such other children as may be born to me." The trustees were directed from the income of the share of each child to pay the expenses of their education and support, and as each son arrived at the age of twenty-five years to pay over and deliver to him his full share of the trust property and the increment thereof. Provision was made for adding to the principal any excess income and that any part of a son's share might, with the consent of the testator's widow be advanced to him after reaching the age of twenty-one years to assist him in business. The will then directs the trustees to hold the shares of the daughters for their sole and separate use and upon the marrying of each daughter the trustees were given authority to advance to her $5000, and directed to pay her thereafter the net annual income of her share semiannually, for her sole and separate use. The provision in the will which follows is that whose construction the court is asked to determine.
"At the death of each daughter and of each Son of whose share any part may remain in the hands of said Trustees, the said Trustees shall pay over deliver the share of each deceased Son or daughter to their respective children if either have deceased leaving children to be equally divided between them and I give and devise the same accordingly, but if such deceased Son or daughter leave no children then I give and devise the share of the one so dying without children to his or her surviving brothers and sisters the issue of any deceased brother or sister, the issue to take the deceased parents' share and such share shall be retained by said Trustees and held in trust or paid over into the hands of such surviving brothers and sisters and their issue according as their respective shares are then held, but if any of my Sons so dying shall leave a Widow and no children surviving then said Trustees shall pay to such Widow the Income of One-third part of such trust fund as may be then held for my said Son during her life unless she marry again in which case such payment shall cease, and the remainder of such Sons share (together with said third part after death or marriage of said Widow) shall be paid over to his Brothers and Sisters and their issue as hereinbefore provided."
Each of the three sons attained the age of twenty-five and received his share of the estate. Of these Frank died in 1913, leaving two daughters surviving him, each of whom is now living, married and having one or more children. Winston J. died in 1923, having had two children, a son Winston who died in 1894, at the age of two years, and a daughter Mary T. Parks, one of the defendants, having no children. Of the daughters, Florence Maude, wife of Horatio M. Reynolds deceased, one of the defendants, never had children, and Constance a defendant, wife of Warren B. Kellogg, had three children, Winston T. who died in 1904 at the age of one year, a second child also named Winston T. and Warren, are now living and unmarried. Mary L. Townsend, a defendant, married William K. Townsend deceased, having had three children Winston, the eldest, who died intestate at the age of twenty and unmarried in 1898, the second child Molly married Dwight H. Day and died in 1902, leaving surviving her, her husband and one child Huntington T. Day a defendant, both of whom are now living, and a third child, George H. Townsend, is living and has a wife and six children, all of whom are living.
Our advice is asked concerning questions:
(a) To whom and in what proportions should the estate held before her death for the benefit of Mary L. Townsend be now distributed?
(b) Did the remainder interest in the share held for the benefit of Mary L. Townsend vest in her children, so that each child as he or she was born took a vested interest therein?
(c) If so, was this vested interest of her child, Molly T. Day, divested upon her death during the lifetime of Mary L. Townsend, or was it a transmissible interest?
(d) Did the remainder interest upon the death of Mary L. Townsend vest in George H. Townsend, her surviving child, to the exclusion of the representatives or issue of Molly T. Day?
None of the defendants make any claim with respect to Mrs. Townsend's share except George H. Townsend, a son, and Huntington T. Day, a grandson, in his capacity as administrator of the estate of his mother, Molly T. Day.
Other questions asked are:
(e) What meaning is to be given to the word "issue" in the clause giving the share of a daughter dying without children to her surviving brothers and sisters and the issue of any deceased brother or sister?
(f) If the word "issue" means "children," does each nephew and niece of a daughter take, subject to the daughter's leaving children, an interest capable of being transmitted by succession and bequest in such daughter's share:
(1) Upon the birth of such nephew or niece?
(2) When and if such nephew or niece survives his or her parent?
(g) If the word "issue" does not mean "children," is the gift valid, as to a brother or sister or both, surviving the daughter, to the exclusion of the "issue" of the predeceased brother or sister?
(h) If the word "issue" does not mean "children," is the remainder invalid, either in the whole or in part, and does it become intestate estate?
The answers to these questions might affect the shares now held in trust for the benefit of the defendants, Mrs. Reynolds and Mrs. Kellogg. As to these all of the parties are in substantial accord.
James E. Wheeler, for the plaintiffs.
George D. Watrous, for the defendant George H. Townsend.
J. Dwight Dana, with whom, on the brief was Huntington T. Day, for the defendant Huntington T. Day, administrator.
Leonard M. Daggett, for the defendant Constance Kellogg.
William R. Pitkin, for the defendants Margaret Marsh and Mary Marsh.
J. Birney Tuttle, for the defendant May T. Parks.
Several things are noticeable in the language of this will about whose construction the contest in this action arises. Since this concerns the share in the remainder given each daughter we confine our advice to the disposition of the questions concerning these.
The testator gives in trust for each daughter the use for life of a one-sixth share of the residue of his estate and then orders his trustees to "pay over and deliver" the share of each deceased daughter leaving children, to such children to be equally divided between them. "To pay over and deliver" means in this connection to transfer the share of the deceased daughter to her children, in this case to transfer the share in which Mrs. Townsend had a life use to the children. We held the word "pay," in the will under construction in Clark's Appeal, 70 Conn. 195, 216, 39 A. 155, was used for "transfer." Neblett v. Smith, 142 Va. 840, 853, 128 S.E. 247; Good v. Montgomery, 119 Cal. 552, 560, 51 P. 681; In re Thompson's Estate, 1 N.Y.S. 213; Lippincott v. Pancoast, 47 N.J. Eq. 21, 27, 20 A. 360.
There is no substitutionary gift over of this remainder to the grandchildren of the daughter of the testator upon her decease. Children cannot in this provision be construed to mean grandchildren. All of the parties agree in this construction. The grandchild of Mrs. Townsend, Huntington T. Day, cannot take under the will of the testator as a grandchild but must take, if at all, through the estate of his mother, Molly T. Day. If the deceased daughter leaves no child the share of the one so dying is given by the will of the testator to his or her surviving brothers and sisters and the issue of any deceased brother or sister. The contingency upon which the gift over arises is limited to the contingency that the daughter "leave no children." This never occurred as to the share of Mrs. Townsend, she having had three children, of whom one survived her. This presents the only contingency in the testator's will which will divest the gift to the children of a daughter and transfer it to others. We have then for construction a gift for life to a daughter of the testator with a gift over of the remainder to her children, one of whom deceased leaving a child, the great-grandchild of the testator. Concededly the great-grandchild cannot take the share of his mother, Mrs. Day; the questions revert, did the interest in this share vest in his mother prior to her death, and if so when, and does it now belong to her estate?
It is the claim in behalf of George H. Townsend that no estate could vest in Mrs. Day at the time of the testator's death but that it did not vest until the death of Mrs. Townsend. The testator died in October, 1864, and his daughter Mrs. Townsend in May, 1929, over sixty years later. "The law favors vesting of estates at the earliest possible moment, . . . which is at the death of the testator." 2 Schouler on Wills, Executors Administrators (6th Ed.) § 1258. This rule has long obtained in this jurisdiction and must prevail unless the testator has manifested a contrary intention in his will which will supersede this, as it will any other canon of construction. Norton v. Mortensen, 88 Conn. 28, 89 A. 882; Meriden Trust Safe Deposit Co. v. Squire, 92 Conn. 440, 103 A. 269. Mr. Justice Gray, in McArthur v. Scott, 113 U.S. 340, at page 378, stated the universal rule, "that sound policy as well as practical convenience requires that titles should be vested at the earliest period, it has long been a settled rule of construction in the courts of England and America that estates, legal or equitable, given by will, should always be regarded as vesting immediately, unless the testator has by very clear words manifested an intention that they should be contingent upon a future event."
Search the will and the surrounding circumstances as we may we find nothing which tends to manifest an intention on the part of the testator that the remainder interest in the share of each child should be contingent in its vesting upon the future event of the death of the life tenant Mrs. Townsend.
Where the future event of the death of the life tenant is annexed to the time of payment or transfer of the remainder we have repeatedly held that the remainder gift to the children of the life tenant vests at the death of the testator or as soon as one of the children is born "unless the will expresses a contrary intent." Belcher v. Phelps, 109 Conn. 7, 144 A. 659. As we construe this language that is the precise situation in this case.
The remainder interest to the children of Mrs. Townsend was a gift to a class. It vested as soon as a child was born to her, while the right of possession and enjoyment was postponed until the life tenant died. We stated our rule in Close v. Benham, 97 Conn. 102, at page 103, 115 A. 626, to be: "We have uniformly held that unless the will sufficiently expresses a contrary intent, a limitation over, after a life estate, to the issue of the life tenant, and, failing issue, to the heirs, or heirs at law, or to the children or grandchildren of the testator, or to children of another than the testator, are gifts to a class, and vest in point of right upon the testator's death, although their right of possession is postponed until the termination of the life estate." Angus v. Noble, 73 Conn. 56, 46 A. 278; Norton v. Mortensen, 88 Conn. 28, 34, 89 A. 205; Jones' Appeal, 48 Conn. 60, 67; Farnam v. Farnam, 53 Conn. 261, 278, 2 A. 325; Allen v. Almy, 87 Conn. 517, 89 A. 205; Bartram v. Powell, 88 Conn. 86, 89 A. 885; Wallace v. Wallace, 103 Conn. 122, 130 A. 168. We adopt this rule in the belief that it will best carry out the probable intention of the testator "where the will indicates no contrary intent." We find no indication in the will of the testator or in its surrounding circumstances as presented to us which evinces the testator's intent not to vest this remainder in the "respective children" of each of his daughters as a class at the time of the birth of each member of the class.
The general plan of a per stirpes gift to the testator's children and grandchildren tends to reveal the testator's intention to vest this remainder in this class of children at the birth of the first child; the class opening to let in after-born children. A gift of the remainder interest "at the death" of the life tenant as in Johnson v. Edmond, 65 Conn. 492, 33 A. 503, or "upon the decease" of the life tenant as in Austin v. Bristol, 40 Conn. 120, we have held to vest at the testator's death.
Since the remainder interest of Mrs. Day in the share of which her mother had a life interest vested at her birth in her as a member of the class composed of the children of her mother, the grandchildren of the testator, it was alienable and transmissible by will or inheritance. Allen v. Almy, and Bartram v. Powell, supra; Middletown Trust Co. v. Gaffey, 96 Conn. 61, 69, 112 A. 689.
Counsel for George H. Townsend answer the legal proposition that the gift to the children of Mrs. Townsend was to her children as a class by the claim that members of the class who have died before the time for the enjoyment of the gift are upon death excluded from the class. The cases already cited negative this answer in case the share of Mrs. Day vested in her at her birth and the cases cited fully demonstrate this, as they do the claim that by leaving children the testator meant leaving children living at the death of each daughter. Equality among the testator's children and among their children is the keynote of his gift of the remainder of his estate. It is true the will does not go further and provide for the great-grandchildren of the testator. However, the reading of this will leaves no uncertainty as to the testator's intent. His purpose is nowhere expressed that he intended to exclude his great-grandchildren from sharing in his estate. Yet this is what will happen if this will be construed to give George H. Townsend the whole of the share in which his mother had a life interest to the exclusion of Mrs. Day's estate and presumptively, ultimately, of the testator's great-grandchild, the only son and child of Mrs. Day. A construction of this will effecting this result, to that extent, would defeat the testator's plan of a per stirpes equality. The construction we adopt accords with the testator's intent as revealed in the plan of his will.
Thus far we have discussed and answered the first series of questions, (a), (b), (c) and (d).
The second series of questions, (e), (f), (g) and (h), call for a construction of this will as to the disposition of the share of a daughter who may die without leaving children. That contingency has not yet arisen. It is our rule not to construe possible questions which may arise under a will but to leave these until they do arise. Neither the fact that counsel for all the parties are in substantial accord as to the answers to these questions, nor the claimed effect of their answer upon the necessity for a present answer to them, affords a sufficient reason for an exception to our rule.
It must follow that Winston Trowbridge Townsend's remainder interest in the share in which his mother had a life interest vested in him at his birth and was not divested by his death preceding that of his mother and upon her death became a part of his estate.
Our conclusion is that Huntington T. Day as administrator of Molly T. Day, Stanley Daggett as administrator of the estate of Winston T. Townsend and George H. Townsend are each entitled to one-third of the share of which Mary L. Townsend had the life use, and that Huntington T. Day as administrator of the estate of Molly T. Day and George H. Townsend as next of kin of Winston T. Townsend, will be entitled, in equal shares, to the one-third interest of Winston T. Townsend upon the settlement of his estate.
We answer question (a), one-third each to George H. Townsend, the estate of Molly T. Day, and the estate of Winston T. Townsend. (b) Yes. (c) No; it was a transmissible interest. (d) No.