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6. WILLS (§ 634*)-CONSTRUCTION-ESTATE |ing in enjoyment and possession was postCONVEYED.

Under a will giving testator's wife a life estate, and providing that "upon the death of my said wife, I give and devise all my estate to my children to be equally divided between them,' the estate given to each child was not contingent upon her surviving the widow, but vested in the child immediately upon testator's

death.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*]

poned to the death of the life tenant, the membership of the class was to be determined as of that time. Here are two independent propositions. The first is well made in that the gift is one to a class in the sense that it is not one to persons nominatim, but designated by a general description. The second, and touching the determination of the persons designated, is one not infrequent

Case Reserved from Superior Court, Litch-ly found in the text-books and cases. field County; Howard J. Curtis, Judge.

Suit by Thomas L. Norton, administrator, against Lucy E. Mortensen and others for the construction of a will. Will construed as stated.

Sidney P. Ensign, late of Salisbury, died July 24, 1896, leaving both real and personal estate and a will duly probated. By this will he gave the life use of all his property to to his wife, Jane E. Ensign, with a limitation over, expressed as follows: "Upon the decease of my said wife I give and devise and bequeath all my estate unto my children to be equally divided between them share and share alike." He was survived by his wife and three daughters. Mrs. Ensign died December 29, 1911. When the will was executed Mr. Ensign was 62 years of age and Mrs. Ensign 58, and the three daughters who survived him were his then only children. One of the daughters, Clarinda, was then

married and had five children. She died

January 15, 1899. The other two, Harriette and Lucy, were unmarried. Harriette died intestate and unmarried on May 9, 1908. Lucy still survives, being now by marriage

Mrs. Augustus Mortensen. At the time of the execution of the will Mr. Ensign was on terms of love and affection with all of his daughters and grandchildren. Clarinda, the mother of these grandchildren, resided in the next house to the testator's. The plaintiff,

as administrator d. b. n. of the testator's estate, asks for advice as to the distribution of the estate in his hands ready for distribu

tion.

Schoul

er on Wills, § 532; Tingley v. Harris, 20 R. I.
517, 519, 40 Atl. 346: Matter of Baer, 147
N. Y. 348, 353, 41 N. E. 702. Gardner in his
work on Wills, p. 447, expresses it as follows:
"When a testamentary disposition is made to
cludes all persons within the class at the
a class and possession is postponed, it in-
time to which possession is postponed, and
excludes those who are not in existence at
the time of the distribution." We have no
ex
occasion to inquire as to either the correct-
of this asserted principle of construction. It
ness or the true meaning and interpretation
is sufficient for present purposes to note that
those who assert it recognize that it has its
stated the rule as above, immediately pro-
exceptions. Gardner, for instance, having
ceeds to add that it is subject to two ex-
ceptions. One of these is where the limita-
tion over is to heirs of the testator, as was
the case in Allen v. Almy, 87 Conn. 517,, 89

Atl. 205. He states the other as follows:

"Where the limitation over is to children either of the testator or the first taker, it

will embrace both those who are in existence at the death of the testator and such as may subsequently come into being before the period of distribution." Page 447. Later on he says more broadly that where there is a limitation over to children, either of the holder of the previous estate or of another, the class includes both children living at the

death of the testator and those who subsequently come into being before the arrival of the time for distribution, adding that the

remainder vests in the children alive at the death of the testator, subject to open and let in after-born children. Page 452.

Howard F. Landon, of Salisbury, for plaintiff. John F. Addis, of New Milford, for de- [1, 2] Whether the rule as last stated be fendant Harriette P. Ensign's Estate. J. regarded as an exception to some other rule Clinton Roraback, of Canaan, for defendant or an independent one it has received genJane E. Ensign's Estate. Frederic M. Wil-eral recognition as one which leads to the liams, of Waterbury, for defendant Mor- early vesting of estates, which the law hightensen. Leonard J. Nickerson, of Cornwall, for Fenton's Heirs.

ly favors, and at the same time effectuates the presumptive intent of the testator under the circumstances where no other indication PRENTICE, C. J. (after stating the facts of that intent appears in the will as read in as above). Mrs. Mortensen, as the only child the light of surrounding circumstances. Jarof the testator who survived her mother, the man's more extended statement of it is as life tenant, claims to be entitled to receive follows: "Where a particular estate or interfrom the plaintiff, as administrator of her est is carved out, with a gift over to the chilfather's estate, all of the property now in dren of the person taking that interest or his hands for distribution. She contends the children of any other person, such gift that the gift over to the testator's children would embrace, not only the objects living was one to a class, and that, since the vest- at the death of the testator, but all who may

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ed him, leaving a child who survived him, but died before the life tenant. It was held that the grandchild took an immediately vested estate, which was not defeated by her death before the life tenant, but accrued to the benefit of her estate.

subsequently come into existence before the period of distribution. In cases falling within this rule the children, if any, living at the death of the testator take an immediately vested interest in their shares, subject to the diminution of those shares (i. e., to their being divested pro tanto) as the In Beckley v. Leffingwell, 57 Conn. 163, 17 number of objects is augmented by future Atl. 766, there was a gift over after a life births during the life of the tenant for life; estate to the children of the life tenant, if and consequently, on the death of any of any, if not to the testator's grandchildren. the children during the life of the tenant for The life tenant died after the testator, havlife, their shares (if their interest therein is ing had no children. At the testator's death transmissible) devolve to their respective rep- 15 grandchildren were living; 2 were subresentatives, though the rule is sometimes in- sequently born. Nine of the 17 died before accurately stated, as if existence at the pe- the life tenant, 4 of them leaving issue, and riod of distribution was essential." Jarman 5 none. The claim was made that the grandon Wills (6th Ed.) 1667. To the same effect children who survived the life tenant took see Underhill on Wills, § 558, Theobald on to the exclusion of the representatives of the Wills, 312, Page on Wills, 635, Washburne deceased grandchildren. We held that the on Real Property, § 1596, and Reeves on estate vested at the death of the testator in Real Property, § 879. Among the cases sup- the grandchildren as a class, that this class porting the proposition are Middletown v. opened to let in those subsequently born, and Messenger, 5 Ves. 136; Doe v. Considine, 6 that the representatives of the deceased Wall. 458, 475, 18 L. Ed. 869; Minnig v. Bat-grandchildren were entitled to take the share dorff, 5 Pa. 503, 505; Stevenson v. Lesley, 70 which the deceased would have taken had N. Y. 512, 517; Yeaton v. Roberts, 28 N. H. they survived. 459, 467; Arnold v. Arnold, 50 Ky. (11 B. Mon.) 81, 91; Lombard v. Willis, 147 Mass. 13, 14, 16 N. E. 737. We have upon several occasions given full effect to this canon of construction.

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In Johnson v. Webber, 65 Conn. 501, 513, 33 Atl. 506, there was a limitation over to the children of two named granddaughters, to take effect in enjoyment upon the decease of the last surviving granddaughter. Two great grandchildren were living when the testator died; two were born later. All four outlived both granddaughters. We held that the gift to the great-grandchildren was one which vested in them as a class; that it vested in point of right at the death of the testatrix in the then two members constituting the class, and in those after born as soon as born, subject to being defeated as to any of them by death before that of the surviving granddaughter, if a provision in the will for a gift over in such contingency was val

In Dale v. White, 33 Conn. 294, 295, there was a gift to the children of the testator's two daughters, named, "that they now have or hereafter may have, to be equally divided between all my grandchildren when the youngest shall become of age." One of the daughters had five children, all of whom were living at the testator's death and at the time of distribution. The other daughter had two children living at the testator's death, and subsequently had four more, two of whom had died at the time of distribution. One of these two was the young-id, a matter which the court had no occaest grandchild, and he died before coming of age; the other died before him. We held that the legacy vested at the death of the testator, and not at the time of distribution, that the after-born grandchildren be admitted to share, and accordingly that the fund was to be divided into parts equal in number to the whole number of grandchildren living and dead. We said: "It is a well-settled rule of construction that a legacy given to a person or a class, to be paid or divided at a future time, takes effect in point of right on the death of the testator. In such case the contingency attaches, not to the substance of the gift, but to the time of payment." 33 Conn, page 296.

In Austin v. Bristol, 40 Conn. 120, 16 Am. Rep. 23, there was a gift over after a life estate to such of the testator's children as might be living at the time of the life tenant's death, and to the issue of those who were deceased, to be equally divided between them, the issue of any deceased child to take per

sion to determine. There was no suggestion of a defeat by any other means than through the operation of the will provision. As all of the great-granddaughters were alive, there was no occasion to deal with the right of representatives of one deceased further than was inferentially done in the conclusion stated.

In the following cases the gift over was held to have vested in the members of the class at the death of the testator and in after-born persons answering the class description as soon as born. Jones' Appeal, 48 Conn. 60, 67; Farnam v. Farnam, 53 Conn. 261, 278, 2 Atl. 325, 5 Atl. 682; Mitchell v. Mitchell, 73 Conn. 303, 307, 47 Atl. 325. these cases either all of the members of the class had survived at the time of distribution, or express provision for the contingency of the prior death of a member was made in the will.

In

We know of no case in this jurisdiction where, the gift over being to children either

persons, it has been held, in the absence of the possibilities inhering in it were within provision of the will to that effect, that the his testamentary scheme, upon its face so death of one of them after the testator's simple and so equal in its treatment of the and before the termination of the particular natural objects of his bounty. estate or the time of distribution operated to diminish the number of shares into which the fund was to be divided, or that the membership of the class of takers was to be confined to those then living. The expression in Belfield v. Booth, 63 Conn. 299, 304, 27 Atl. 585, which has been quoted as being to that effect, countenances no such principle. The statement referred to was made upon the strength of the express provision of the will limiting the takers to those who should be living when the division was made.

[3] Where the limitation over is, as here, to the children of the testator, with the right of enjoyment postponed, and not to the children of some other person, the reason for the nonexclusion from the class of beneficial takers of any child who survived the testator, or its legal representatives, unless the intent that there be such exclusion is clearly expressed by the testator, is especially strong. In such case an enlargement of the class is impossible, since a deceased can have no children, not either born or conceived, and a child en ventre sa mere will be considered in being from the time of its conception, where it will be for its benefit to be so considered. Cowles v. Cowles, 56 Conn. 240, 247, 13 Atl. 414. There is every reason why a remainder gift to the children of the testator, designated by description only, should, under ordinary conditions, and in the absence of other indications of a contrary intent than arise from a mere postponement of enjoyment, be regarded as one which immediately upon the death of the testator vests an indefeasible estate in his children then in being. With the effect of our statute (Gen. St. § 296), in the case of a child which predeceased the testator we have no present concern, except as it is indicative of the policy of our law.

The rule above stated is, of course, one of presumption only. If a contrary intent has been sufficiently expressed in the will, that intent will in this, as in all other matters of testamentary construction govern. This will is altogether barren of provision or expression indicative of such contrary intent, and the circumstances surrounding the testator are equally barren of suggestion of his having harbored such intent, to say nothing of his expression of it. On the contrary, it is scarcely conceivable that he could have entertained any desire that survival until the death of his wife should be a controlling factor in determining the extent of his benefactions in favor of his children and their issue, all, in so far as appears, equally near and dear to him. It would be strange indeed if the uncertainty of results which would attend such a disposition of his property and

[4] The use by the testator of the expression "upon the decease of my said wife" in connection with the gift of the remainder is not indicative of an intent to postpone the vesting in right. Of this formula we have heretofore had occasion to say that it is construed to relate to the time of taking effect in possession, and not to the time of taking effect in interest. Austin v. Bristol, 40 Conn. 120, 123, 16 Am. Rep. 23; Johnson v. Edmond, 65 Conn. 492, 499, 33 Atl.

503.

[5] Counsel for Mrs. Mortensen make no claim on her behalf, as the last survivor of the testator's three children, based upon the asserted creation by the will of an estate in joint tenancy in the members of the class with the incident of survivorship. In Allen recent occasion to show that such claim, if v. Almy, 87 Conn. 517, 89 Atl. 205, we had made, would have been untenable.

limitation over upon the death of Jane E. [6] The superior court is advised that the Ensign gave to each of the testator's children who survived him, to wit, Clarinda H. Fenton, Harriette P. Ensign, and Lucy Ensign, sible and indefeasible estate in fee in and now Lucy E. Mortensen, a vested transmisto one-third of the testator's estate, subject

only to the life estate of Jane E. Ensign, and

that such estate in each of said children Jane E. Ensign, or defeated by her not so was not contingent upon her surviving said surviving.

No costs in this court will be taxed in favor of any of the parties. All concur.

(88 Conn. 86)

BARTRAM v. POWELL et al. (Supreme Court of Errors of Connecticut. March 5, 1914.)

1. WILLS (8 524*)-ESTATE DEVISED-TIME OF VESTING.

Where a will devises a particular estate with a limitation over to children, whether of testator or some one else, with the right of ena clear contrary intent, such interest will vest joyment or possession postponed, in absence of in the children as a class immediately upon testator's death, but will also include those of the class coming into being after his death, but before the time of enjoyment or distribution, and the number of particular preceding estates which were carved out of the fee is immaterial.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1116-1127; Dec. Dig. § 524.*] 2. WILLS (§ 629*)-ESTATE DEVISED.

The law looks with such favor upon a vested interest that it recognizes a vesting in intertory devise. est by way of contingent remainder or execu

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1461, 1462; Dec. Dig. § 629.*]

3. WILLS (§§ 622, 625*)—ESTATE DEVISED- to be divided equally between them, share EXECUTORY DEVISE. and share alike.

Contingent remainders and executory devises are governed by the same rule so far as their alienation or transmission is concerned. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1440-1444, 1447-1451; Dec. Dig. $8 622, 625.*]

"Sixth. Upon the decease of my said wife and of my said son, he leaving no lawful issue surviving him, I dispose of all the estate mentioned in the third and fourth clause of this, my will, as follows:

"I give and bequeath the same to the chil

4. WILLS (§ 634*)-ESTATE DEVISED-VESTED INTEREST. A will gave testator's wife the use and in-dren of Edwin Scofield, Jr., and Nathaniel come for life of his personalty not disposed of, and provided that "upon the decease of my said wife, I give to my said son, he surviving," the income during his life, and at his death "to his lawful issue, if any he have," and that upon the death of the wife and testator's son without lawful issue, such property should be divided equally between the "children" of the persons named. Held, that the bequest over to the "children" vested in those who were then alive at the time of testator's death, subject to other children born thereafter and before the period of distribution coming in, and hence the children alive at testator's death took a transmissible interest in the property.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*] 5. WILLS (§§ 687, 700*)-PROCEEDINGS-PAR

TIES.

The executors and administrators, and not the heirs, of legatees who took a vested interest in personalty under a will are entitled to receive the shares of such legatees from the testamentary trustee, and hence such legal representatives were necessary parties to a suit by the trustee for the construction of the will and distribution of the property.

[Ed. Note.-For other cases, see Wills, Cent.

Dig. §§ 1638-1643, 1678; Dec. Dig. $687, 700.*]

Case Reserved from Superior Court, Fairfield County; William L. Bennett, Judge.

Suit by Floyd B. Bartram, trustee, against Julia Adams Powell and others, for the construction of a will. Case reserved by superior court for the advice of the Supreme Court of Errors. Will construed as stated.

E. Adams, of said Stamford, to be equally divided between them, share and share alike." The son Charles died January 10, 1901, leaving no issue and having never married. Mrs. Harms died September 23, 1911. Edwin Scofield, Jr., and Nathaniel E. Adams married the testator's half-sisters. They, as well as their wives, were living at the time of the testator's death. Scofield then had five children and Adams four. No child was thereafter born to either of them. These children would have been the testator's only heirs at law and next of kin had his son Charles not survived him. At the time of Mrs. Harms' death the defendant Julia A. Powell, a daughter of Adams, was the only one of the nine children who was living. Of the other eight several had died without issue; one had died leaving a widow still living, but without issue surviving him, and three of them had died leaving issue still living. The plaintiff, as trustee under the will, has in his hands personal estate held by him for distribution under the provisions of paragraph 6 of the will. Mrs. Powell claims to be entitled to all of it as the sole member of the class made up of the children of Scofield and Adams, who survived to the termination of the life estate of Mrs.

Harms.

Floyd B. Bartram, of Stamford, for plaintiff. Clement A. Fuller, of Stamford, for William F. defendant Adams and others. Tammany, of South Norwalk, for defendant Scofield. Ralph E. Brush, of Greenwich, John E. Keeler and for defendant Powell. John C. Durey, both of Stamford, for defendant Dixon and others.

John W. Harms, late of Stamford, died October 3, 1884, leaving a will, duly probated, made about three years previously, and both real and personal estate. By the second paragraph of this will he gave to his wife, Jane F. Harms, all of his household furniture and one-half of all the balance of his personal estate. In the third paragraph he devoted $5,000 of the remaining one-half of his personal estate to a trust in favor of his son Charles during his natural life, with certain further provisions after the decease of Charles, no longer operative, and with which the reservation is not directly concerned. By the fourth paragraph he gave to his wife the life use of all his real estate in Stamford, and the use and income during her life of all of his personal property not already disposed of. The fifth and sixth para-ternative gift over in fee upon condition, graphs are as follows:

"Fifth. Upon the decease of my said wife, I give to my said son, he surviving, the use and income of all the estate mentioned in the fourth clause of this my will, during his natural life, and at his death I give the said estate to his lawful issue, if any he have,

PRENTICE, C. J. (after stating the facts as above). [1] The situation presented by this case is precisely similar to that in Norton v. Mortensen, 89 Atl. 882, recently decided, except in three particulars, to wit: (1) Two life estates, instead of one, precede the gift over in fee which is in question: (2) the children in whose favor this gift over is made are not those of the testator but of other persons named; (3) there is an al

which gift takes such precedence of the one in question that, if the condition is satisfied, the beneficiaries of the preceding gift over will take the fee absolutely to the entire defeat of all interest under the other, whereas in the former case the gift over in fee was directly and unqualifiedly to the testator's

children. The rule of construction approved | come into possession immediately upon the in the former case must therefore be con- termination of the preceding estate." Johntrolling in the determination of the conten- son v. Edmond, 65 Conn. 492, 499, 33 Atl. 503, tions here, unless some one or more of the 505. changed conditions enumerated suffice to bring the situation out from under its application. That rule was that where a will contains a limitation over to children, whether of the testator, the first taker or other person, with the right of enjoyment or time of distribution postponed, it will, in the absence of a clear expression in the will of a contrary intent on the part of the testator, be construed as one to the children as a class vesting in interest immediately upon the death of the testator, and embracing as its ultimate beneficiaries both those children who are in existence at the death of the testator and such as may subsequently come into being before the time of enjoyment or distribution arrives.

It is apparent that the number of the preceding particular estates, which may have been carved out of the fee, if only no one of them is a fee, and a portion of the fee remains to be disposed of, is a matter of no importance. The two particular estates here were life estates, and a remainder was left for disposition. We are concerned with the disposition of that remainder only.

The incident that the donees are children, not of the testator, but of other persons, does not take the situation out from the operation of the rule. It expressly contemplates such a class of children.

[2] The fact that the will first provides for a limitation over after the two life estates to the lawful issue of Charles, if any, and then, in the event that he died without issue surviving, to the children of Scofield and Adams, is also one of no material consequence in its bearing upon the operation of the rule. The conditional gift to Charles' surviving issue, if any, did not prevent a vesting in interest in these children under the alternative limitation to them. With such favor does the law look upon a vested, as distinguished from a contingent, interest that we, in common with other courts, have come to recognize a vesting in interest by way of a contingent remainder or executory devise. Beckley v. Leffingwell, 57 Conn. 163, 166, 17 Atl. 766; Johnson v. Edmond, 65 Conn. 492, 499, 33 Atl. 503; Ingersoll v. Ingersoll, 77 Conn. 408, 410, 59 Atl. 413; Perry v. Bulkley, 82 Conn. 158, 168, 72 Atl. 1014; Carpenter v. Perkins, 83 Conn. 11, 16, 74 Atl. 1062; Allen v. Almy, 87 Conn. 517, 89 Atl. 205; Dunn v. Sargent, 101 Mass. 336, 338; Peterson's Appeal, 88 Pa. 397, 402.

"The term 'vested,' as applied to remainders, has unfortunately been used in English | and American law with two meanings. It may signify simply a remainder so far vested as to be capable of alienation, and the subject of succession by inheritance. It may also signify a remainder so absolutely

[3, 4] We have no occasion to inquire whether the gift over to the "children" was in strictness a contingent remainder or an ex ecutory devise. The two are governed by the same rule so far as concerns their aliena tion or transmission. Ingersoll v. Ingersoll, 77 Conn. 408, 410, 59 Atl. 413. The important question for us is whether or not it vested so as to be alienable and transmissible by inheritance. The cases cited furnish the answer to this question. "Upon the death of one in whose favor either may have been created, although the contingency has not occurred on which his right to ultimate enjoyment may depend, it will form part of his estate, unless his survival until the termination of the prior estate is a condition of his taking any benefit from it, and a condition precedent." Ingersoll v. Ingersoll, 77 Conn. 408, 410, 59 Atl. 413.

In the case last cited application of this principle was made to conditions precisely like those before us. There was a gift over to one, if living when the particular estate terminated, and, if not, to others. We said that these last took a vested interest which was transmissible.

The cases cited from this jurisdiction all present situations similar in all material respects to those in this case. The first of them furnishes a good illustration of the others. There was a gift over after a life use in favor of a son to his children born in lawful wedlock, if any, and, if none, to the testator's grandchildren. It was held that the grandchildren as a class took on the death of the testator a vested interest by way of contingent remainder (possibly inaptly de scribed as a vested contingent remainder), subject to being divested by the birth of a child to the son. Beckley v. Leffingwell, 57 Conn. 163, 17 Atl. 766. In the subsequent cases we held, what was not in that case determined, that the interest so vested is an alienable and transmissible one.

It is scarcely necessary to add that there is in this will no indication of a testamentary intent that the property in question should be divided among those of the children only who survived to the termination of the particular life estates.

The preceding gift in remainder did not prevent a vesting in interest in the children of Scofield and Adams as a class, with the result indicated in the rule stated, to wit, that one-ninth of the testator's estate in the plaintiff's hands for distribution under paragraph 6 belongs to Mrs. Powell and one-ninth to the estate of each of the deceased children of Scofield and Adams.

[5] The executors or administrators of these several estates are the only persons entitled to receive from the plaintiff the

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