It has been said that the word "then" when used in a testament may be used to express a time or to designate an event and that it is more usually used in the latter sense. Chase National Bank v. Guthrie, 139 Conn. 178, 183 90 A.2d 643 (1952). The context of its use determines how it is used.
In seeking that intent, the court looks first to the will itself and examines the words and language used in the light of the circumstances under which the will was written. Chase National Bank v. Guthrie, 139 Conn. 178, 182, 90 A.2d 643; First National Bank Trust Co. v. Parish of St. Thomas' Church, 141 Conn. 489, 497, 107 A.2d 246. To ascertain the intent of a particular provision, the will must be read as a whole to discover whether it discloses an underlying intent which should be considered in finding the meaning to be accorded to the particular language under construction.
Hartford-Connecticut Trust Co. v. Beach, 100 Conn. 351, 359, 123 A. 921 (1924); Mitchell v. Mitchell, 73 Conn. 303, 307, 47 A. 325 (1900); 3 Powell, Real Property 352; 1 Simes Smith, Law of Future Interests (2d Ed.) 101. The children surviving the testator received a vested remainder in the assets of the estate subject to open so as to include after born children of the income beneficiaries. Hartford National Bank Trust Co. v. VonZiegesar, 154 Conn. 352, 357-58, 225 A.2d 811 (1966); Chase National Bank v. Guthrie, 139 Conn. 178, 181, 90 A.2d 643 (1952); 1 Simes Smith, Law of Future Interests (2d Ed.) 114, 146; 2A Powell, Real Property 276. The minimum membership of the class was determined when the testator died. Hartford National Bank Trust Co. v. Birge, 159 Conn. 35, 41, 266 A.2d 373 (1970); Hartford-Connecticut Trust Co. v. Gowdy, supra, 554-55; 2 Simes Smith, Law of Future Interests 654; 3 Powell, Real Property 365. It closed, by the rule of convenience, at the death of the last income beneficiary because it was at that time that the members of the class were entitled to possession and enjoyment of their gift; their vested remainder subject to open became a present, possessory interest. Stinson v. Palmer, 146 Conn. 335, 336, 150 A.2d 600 (1959); Mitchell v. Mitchell, supra; 2 Simes Smith, Law of Future Interests (2d Ed.) 634; 3 Powell, Real Property 364. The creation of a class gift by a testator means distribution is made on a per capita basis. Under such a distribution, the trust assets are divided into as many shares a
This court has repeatedly held that the particular language employed in the trust instrument must control. Hartford National Bank Trust Co. v. Birge, 159 Conn. 35, 43, 266 A.2d 373 (1970); Chase National Bank v. Guthrie, 139 Conn. 178, 182, 90 A.2d 643 (1952). In this connection, the law is that the use of the word "discretion" in a trust instrument, in relation to the powers of a trustee, is generally read by courts to be coextensive with a duty to exercise discretion "prudently."
South Norwalk Trust Co. v. White, 146 Conn. 391, 395, 152 A.2d 319; Hartford National Bank Trust Co. v. Devitt, 145 Conn. 384, 388, 143 A.2d 441. We may not speculate as to what she may have meant to say but must give effect to what she did say. Smith v. Foord, 143 Conn. 550, 556, 124 A.2d 224; Chase National Bank v. Guthrie, 139 Conn. 178, 182, 90 A.2d 643. In her will, the words "lawful issue . . ., share and share alike," are not qualified, explained or modified by any context.
But "[t]he quest is to determine the meaning of what the . . . [settlor] said and not to speculate upon what he meant to say." Chase National Bank v. Guthrie, 139 Conn. 178, 182, 90 A.2d 643; First National Bank Trust Co. v. Parish of St. Thomas' Church, 141 Conn. 489, 497, 107 A.2d 246. Here, the same provisions as to invasion of principal were used in the case of the defendant as were used by the settlor in describing his own powers of invasion.
The gift to the testator's grandchildren was a gift to a class: Hill v. Birmingham, 131 Conn. 174, 177, 34 A.2d 604; which closed upon the death of the widow. Chase National Bank v. Guthrie, 139 Conn. 178, 181, 90 A.2d 643. It vested in point of right on the death of the testator. Kimberly v. New Haven Bank N. B. A., 144 Conn. 107, 114, 127 A.2d 817. The widow died on February 9, 1956. Each of the seven grandchildren then living was entitled to one-seventh of the trust estate, but enjoyment thereof was postponed until he or she reached his or her thirtieth birthday.
In seeking that intent, the court looks first to the will itself and examines the words and language used in the light of the circumstances under which the will was written. Chase National Bank v. Guthrie, 139 Conn. 178, 182, 90 A.2d 643; First National Bank Trust Co. v. Parish of St. Thomas' Church, 141 Conn. 489, 497, 107 A.2d 246. To ascertain the intent of a particular provision, the will must be read as a whole to discover whether it discloses an underlying intent which should be considered in finding the meaning to be accorded to the particular language under consideration.
The quest is to determine the meaning of what the testatrix said and not to speculate upon what she meant to say. First National Back Trust Co. v. Parish of St. Thomas' Church, 141 Conn. 489, 497, 107 A.2d 246; Chase National Bank v. Guthrie, 139 Conn. 178, 182, 90 A.2d 643. The will of the testatrix was executed on January 16, 1902. By it she gave her homestead and furniture to her granddaughter, Mabel S. Lloyd. The residue of her estate she gave in trust for the benefit of, and during the lifetime of, her two grandchildren, Mabel S. Lloyd and Stuart L. Rowland, subject to payments, not exceeding $25 a month, to be made from the net income to her brother, George D. Kimberly, during his life, if in the discretion of the trustee his "personal needs" should require such payments.
The quest is to determine the meaning of what the testator said and not to speculate upon what he meant to say. First National Bank Trust Co. v. Parish of St. Thomas' Church, 141 Conn. 489, 497, 107 A.2d 246; Chase National Bank v. Guthrie, 139 Conn. 178, 182, 90 A.2d 643. In articles sixth and seventh, paragraphs two and three of article eighth, and article ninth, the testator, in using the word "issue," coupled it with the words "per stirpes and not per capita," clearly showing his intention to include descendants of all degrees. Contrastively, when he intended to limit bequests to children of a named beneficiary, he did it by using the words "child" or "children," as he did in articles sixth and seventh. He consistently expressed his intention that his residuary estate should be distributed equally between the two branches of his family, with the descendants of one branch being given by representation a one-half share of it. This is clearly shown by the will itself and significantly by the second paragraph of article eighth, in which he directed the trustees, upon the death of Helen, "to convert the said trust property, real and personal, into money, and to divide the same into two equal half parts, and to pay over and distribute one of said equal