The heirs of the testatrix were two brothers, Hattie Angus, John Noble and William V. Noble, the children of a deceased brother, and John W. Maude and Walter Maude, the children of a deceased sister. In her will she makes provision for each of them by name, and in a way which shows that she did not intend to be governed by the principles of the statute of distributions.
The bequests of specified sums to be paid every three months to Hattie Angus, George Noble, William Noble, her brother, John Noble, William Noble, her nephew, Walter Maude and John W. Maude, are each valid. It is argued in *Page 61 behalf of the heirs at law that these provisions are inconsistent with that in the eighth clause of the will, which is that the rents are to be paid (by which is obviously meant that they are to be collected) "every month and kept for three months, and all debts to be paid out of them, the balance to be kept until the end of the year and then to be divided among the heirs." It is apparent that the term "debts" was here used as including the quarterly payments to the legatees. The fund out of which they were to come was, by the opening words of her will, to come into existence only after the payment of all her debts and obligations, the expenses of her last sickness and funeral, and those of settling her estate. She evidently thought there might be a surplus of rents, after satisfying all payments which she had directed, but that as the collections might be better in one quarter than another, it would be wiser not to divide such surplus oftener than once a year. This construction is confirmed by the statement with which the will concludes, that the executrix would "have to collect all rents and pay all debts, divide balance if any, and if you go short take out of each one share." To "go short," in the mind of the testatrix, evidently meant to be unable from the net income available for the purpose to pay the full amount of the quarterly legacies every three months, since the remedy she provides in that case is a corresponding deduction from the share of each. If these legacies were not considered as coming under the term "debts," that word must have been used to signify either debts due at her decease from her estate, or those subsequently contracted by the executrix. That it did not mean those due at her decease is proved by the express provision for their payment before any legacies. That it did not mean only those subsequently contracted by the executrix is shown by the provision for deducting whatever is necessary to meet them from the shares of the annuitants. This presupposes that there will be something left to go to the legatees; whereas there could be nothing left if the entire income were wanted to meet the proper charges of administration. *Page 62
The phrase "each one share" should be read "each one's share." This is justified by the rule of idem sonans. She intended that each legatee should receive his full annuity, if the income proved adequate; but, if not, that his appointed share should be proportionally reduced.
The executrix was given the functions of a trustee, and is entitled to qualify as such, after completing the settlement of the estate. It is unimportant that the name of trustee was not conferred upon her in terms. Hayden v. ConnecticutHospital, 64 Conn. 320, 323.
This trust will continue until the decease of Hattie Angus, George Noble, William Noble, Sarah J. Noble, the present wife of William Noble, John Noble, William V. Noble, Annie Noble and John W. Maude, subject to the power of the Court of Probate to direct a partial distribution of the estate from time to time, if it be deemed expedient and can be done without prejudice to the interests of the annuitants then surviving.
The ultimate remainders to take effect in enjoyment after the determination of these life estates became vested at the death of the testatrix.
The introductory part of the will concludes thus: "I do give, bequeath, and devise my estate as follows." These words import an intention to dispose of the whole of it. Only $1,100, however, is afterwards made the subject of an absolute gift in express terms. This is preceded by other bequests which will exhaust the income annually accruing from the residue of the estate during the lives of certain persons particularly described. The ultimate remainders over are also interests in the income, but these are not limited in terms to the lives of the remainder-men.
A devise of the rents of a parcel of real estate is in law a devise of the parcel itself. Stewart v. Garnett, 3 Sim. 398. It is such because the value of land lies in its rents and profits, and he who is given that value is in effect given the thing which produces it. The same rule applies to a gift of the income of an estate or of the produce of a fund, without limit as to time. Mannox v. Greener, L. R. 14 Eq. 456; *Page 63 Gulick's Exrs. v. Gulick, 25 N.J. Eq. 324; Bristol v. Bristol,53 Conn. 242, 259.
Under these principles of construction, effect may properly be given to the general intent of the testatrix in creating the various remainders over in favor of certain classes of her kindred.
She established a trust which was to endure, at least, during a number of lives. It was her wish that throughout this period her estate should be kept as it was. The reference to adorning the graves with "flowers once in a while, to show that you have not forgotten us," indicates something to be done by those who, like the executors she named, had been personally acquainted with her, and so that she did not look forward to a perpetual trust to be administered by and for those to whom she would be unknown except by name.
The total amount of the quarterly payments to be made to the various legatees is $260. After satisfying these and the charges of administration, and expenses for repairs and keeping the graves clean, if there should remain at the end of any year, during the continuance of the trust, a balance in the hands of the trustee, it is, by clause 8, "to be divided among the heirs." In the clauses immediately preceding, all of her heirs had been named, and a specified sum out of the income of the estate assigned to each. She had given her brothers much less than was to go to a niece, and to two of her nephews much more than to two others. In this way one of the four collateral stocks of descent, between which her estate, had she left no will, would have been equally divided, is annually to receive more than the other three put together. This general intention must control the effect of the provision in clause 8 for a division among the heirs. Taking not as heirs, but as purchasers, and having been treated as purchasers unequally in the previous clauses of the will by which the bulk of her property was distributed among them, it must have been her intention that the annual surplus, if any there was, should be divided in similar proportions; and we think, taking the whole will together, that this intention is sufficiently expressed. *Page 64
Of the $260 a quarter, which is the subject of the various life estates, Hattie Angus is, by clause 1 of the will, to receive $100. If the income in any year be insufficient to satisfy all the bequests, she must suffer an abatement; if it be more than sufficient, she will share in the surplus; and in either event she will receive annually a 100/260 part of whatever is to be distributed. This is "at her death to be divided among the other heirs," and they were thereby invested, upon the decease of the testatrix, with an absolute equitable interest in remainder in an undivided 100/260 part of the entire trust fund, including both real and personal estate. The words "to be divided" import a gift; and the gift dates from the day when the will speaks, its enjoyment only being deferred for the benefit of Hattie Angus. Johnson v. Webber, 65 Conn. 501,513.
The term "the other heirs" is used twice in describing those who are to take in remainder; once here, and once in clause 3. In the latter it is obvious that it refers to the other heirs of the testatrix, that is, those other than William Noble. He had no children, who could inherit his share, and she therefore wished that it should ultimately belong to the rest of her nearest kindred. A similar meaning prima facie attaches to those words as used in clause 1; and there is nothing to rebut the presumption that such was the intent of the testatrix. Upon her decease, therefore, it was her heirs at law, other than Hattie Angus, who became invested with this estate in remainder in an undivided 100/260 part of the trust fund. It must remain in the hands of the trustee and undivided until the expiration of the last of the life estates specifically created in the quarterly income, unless a partial distribution should be previously ordered by the Court of Probate.
It follows from these principles of construction, that by clause 2 the children of George Noble, as a class, were invested at the decease of the testatrix with a like absolute equitable interest in remainder in an undivided 40/260 part of the entire trust fund. This class would open to let in any child who might be thereafter born. Johnson v. Webber,65 Conn. 501, 514. *Page 65
Sarah J. Noble, who was at the decease of the testatrix the wife of William Noble, took, upon that event a life estate in remainder, which will entitle her to receive after his death $40 every three months, or a 40/260 part of the annual net income from the trust fund. The use of the term "wife," instead of widow, imports that this life estate will not inure to the benefit of his widow, unless she be the person who was his wife at the decease of the testatrix. 2 Redfield on Wills, * 28. Subject to these life estates (and to the duty of the trustee, unless otherwise ordered by the Court of Probate, to retain the whole fund in his hands until the expiration of all the other life estates), those, other than William Noble, who were the heirs of the testatrix at the time of her decease, became thereupon invested with an absolute equitable estate in remainder in an undivided 25/260 part of the entire trust fund.
Clause 4 is to be construed in the same manner, mutatismutandis, as clause 2.
Should Annie Noble marry and have a child, an absolute equitable estate by way of executory devise in an undivided 25/260 part of the entire trust fund would thereupon arise in favor of such child, subject to its opening to let in after-born children on an equal footing; and this estate would not be divested, should such child or children die before her. Meanwhile, upon the decease of the testatrix (subject to being hereafter divested by the birth of a child to Annie Noble) an absolute equitable estate in remainder in this same undivided 25/260 part of the trust fund became invested in those whom the testatrix described in clause 5 as "the Nobles." It was "to go back" to them. This indicates that it was to go back in the line through which it came down, namely, the line of James Noble. His stock was that to which the testatrix had already showed especial favor, for, of the legacies left by way of life estates, his children had received considerably more than half. This remainder, therefore, upon the decease of the testatrix, became vested in the three children of James Noble.
The construction of clause 6 follows that of clause 2,mutatis mutandis.
The remainder which was created subject to the life estate *Page 66 in favor of John W. Maude was, at his death, "to go back to the heirs." This expression can only refer to the heirs of the testatrix. It excludes any descent to his heirs, or to his mother's heirs, because there had been no preceding estate in their favor, John W. Maude having taken as an immediate purchaser. At the decease of the testatrix, therefore, an absolute equitable remainder in an undivided 15/260 part of the entire trust fund became vested in her heirs at law.
The heirs who take in remainder under clauses 1, 3 and 7, take per stirpes, and not in the proportions which regulate the distribution of the income during the existence of the life estates. The exclusion of Hattie Angus under clause 1, and of William Noble under clause 3, show that the testatrix did not contemplate an ultimate division for the benefit of the same persons whom she sought to prefer during their lives. In testamentary gifts to be divided among heirs at law, the rule of the statute of distributions is pursued, unless a contrary intention be apparent. Lyon v. Acker, 33 Conn. 222.
So long as the trust continues, the income accruing upon each undivided share, after the expiration of any life estate which may be charged upon it, should be paid quarterly to those entitled in remainder. That their actual possession of the property may be postponed for the security of the surviving annuitants should not operate to deprive them of the enjoyment of its fruits.
Walter Maude is described in the will as of England, and in the writ both he and his brother are named as belonging to that country. If at the decease of the testatrix they were aliens, they could not take any interest in remainder in fee in real estate in this State. Nor if the children of Walter Maude were aliens at the decease of the testatrix, could they take any remainder in fee in real estate in this State, under clause 6. The provisions in favor of the Maudes, so far as they relate to remainder interests in personal estate, or to the quarterly payments from the net income of the trust fund during the continuance of the trust, are valid. Crosgrove v.Crosgrove, 69 Conn. 416, 429. The rents lose their quality of *Page 67 real estate when mingled with the general fund. The children of Walter Maude, so long as the corpus of the trust estate remains undivided, will therefore be entitled to the quarterly payments which would have been enjoyed by their father, were he living.
Whether any equity would arise in their favor, upon its final division, to have their share of the corpus set out in personal property, were that found to be practicable, is a question which requires no present answer, and the facts bearing upon it are not fully presented upon the record.
The provisions for repairs and for keeping the graves clean, in clause 8, are obligatory upon the trustee during the continuance of the trust, but upon its final termination cease to be of any further effect. That for placing flowers on the graves is so uncertain in its terms as not even to amount to a precatory trust, and imposes no obligation whatever.
Clause 9 expresses a desire, but not in such a way as to impose any duty to respect it.
Clause 10 creates a demonstrative legacy to the First Presbyterian Society, which, subject to the rights of all the legatees under this clause to demand a transfer to them of the Gliesman mortgage (as respects the principal sum due thereon), is to be paid in full if the mortgage suffices for that purpose. Any balance collectible on the principal of this mortgage is specifically bequeathed to the six persons described. No deficiency of assets to meet the charges upon the income of the trust fund will impair the rights of the legatees under clause 10. 2 Redfield on Wills, * 137 to * 143.
The Superior Court is advised that the first nine clauses or sections of the will are valid and fully operative, except so far as it is otherwise above stated with regard to clause 9; that no part of the estate of the testatrix is intestate (unless there be an incapacity from alienage to take in remainder, on the final division of the corpus of the trust estate, on the part of some the devisees); that under clause 10 the First Presbyterian Society takes a demonstrative (which by agreement of the parties in interest may be made a specific) legacy, and the Whitney children and Clark Hamilton specific *Page 68 legacies; and that a decree be passed conformably to the construction given to the will in the foregoing opinion.
Costs in this court will be taxed in favor of the plaintiff and of George Noble, and of the children of Walter Maude, against the estate of the testatrix.
In this opinion the other judges concurred.