The primary and usual meaning of a term used in a will is to govern, unless it appears from *Page 395 the context or the surrounding circumstances at the time the testator made the will he intended otherwise.
What the testator intended, if "sufficiently expressed" and "not contrary to some positive rule of law," must prevail.
The remainder over, in the bequests for the benefit of his daughter Fannie in Article 8, section 2, "to her lawful issue and their descendants," and in Article 9 "to her descendants forever", violates the statute against perpetuities in existence at the decease of the testator, since "issue" and "descendants" in their primary and usual sense "comprehend more than immediate issue." Since the descendants can only be ascertained upon the death of the daughter Fannie, these might include children of persons not in being at the testator's death.
In the construction of a devise to the heirs of a living person we said: "It has been determined in this State by a long and uniform line of decisions, . . . that a devise to the heirs of a living person (unless it appears that his children are intended) violates the statute against perpetuities which existed at the date of the decease of the testator, because, until the death of such person, his heirs cannot be ascertained and it is possible that they may be the issue of children yet unborn at the testator's death." Grant v. Stimpson, 79 Conn. 617,620, 66 A. 167.
The same rule applies in the construction of the bequests to the daughter Fannie. Neither the context nor the surrounding circumstances furnish any ground for thinking that the testator used these terms in other than their primary significance.
At the date of execution of the will and at his death the testator had a wife, two sons, and two daughters. None of his children had children except George W. Cornell, and at the date of execution of the will there were three of these. *Page 396
The testator made a like bequest to two of his children, and to George W. $10, which sum, he says, "with that already advanced by me to him will make twelve hundred dollars." To his daughter Fannie he gave the income of $800 during her life, he having already advanced to her a sum sufficient, with this bequest, to equal $1,200. The remainder over of the bequest to the daughter Fannie in Article 8, if she die leaving no descendants then living, he gives to trustees for the use of his son George W. "during his life, and upon his decease to his heirs forever in three equal portions share and share alike forever."
"Heirs" and "children" have different meanings in the law, "yet in common speech they are often used as synonymous." Lockwood's Appeal, 55 Conn. 157,165, 10 A. 519. The testator may have used the word "heirs" with its ordinary meaning. If we may construe the word "heirs" to mean the children of George W. Cornell living at the testator's death, this bequest will be valid, and the law prefers that to a construction which will convert this bequest into an illegal perpetuity.Nicoll v. Irby, 83 Conn. 530, 77 A. 957;Farnam v. Farnam, 83 Conn. 369, 381, 77 A. 70;Wolfe v. Hatheway, 81 Conn. 181, 184, 70 A. 645.
Illustrations of the manner in which we have made use of the context and circumstances surrounding the testator in declaring his intent, are not infrequent in our reports. In Nicoll v. Irby, 83 Conn. 530,77 A. 957, we construed a devise, after a life use to a brother, of a remainder "to my own heirs," to mean the next of kin exclusive of the brother who was the next of kin and only heir at law at the testator's death; because from the context and surrounding circumstances it appeared that the testator intended to exclude the stepchildren of his brother from a share in his estate, and if by "my heirs" were designated the heirs of the *Page 397 testator at the death of his brother, it would be possible for the brother to adopt the stepchildren after the testator's death and thus make them the heirs of the testator contrary to his intent. In Wolfe v. Hatheway,81 Conn. 181, 70 A. 645, the testatrix gave the income of one half of her residuary estate to two sons, "and at the death of either or both, to their heirs at law respectively," and directed that at the death of their wives and all the children of the said two sons, the said property should go to the grandchildren. We held that by the term "heirs at law" the testatrix intended the class of persons defined by her immediately afterward as "wives and children," and that "to avoid the creation of an illegal perpetuity it ought to be so interpreted." In Connecticut Trust Safe Deposit Co. v. Hollister,74 Conn. 228, 231, 50 A. 750, we held from the context that the term "legal heirs" in a will was used as the equivalent of the words subsequently employed in the same sentence: "those who shall legally represent them," and of "their legal heirs or representatives."
What, then, did the testator intend by the term "heirs" in Article 8? Did he intend his three children other than George W., or did he intend his three grandchildren then living, or did he intend the heirs of his son George W. who might be living at his death? "In three equal portions" may apply to either the three children or the three grandchildren. There can be no doubt of the testator's intention. He desired to give to his son George and his children a greater proportion of his property than to his other children and their issue. George was not provident, and so he placed his portion in trust, giving him its use. What more natural than that he should leave the remainder to the children of George? These were his only grandchildren. He was on terms of affection with their father. The strong relation of affection with their father. The strong relation of affection between a grandparent and his *Page 398 grandchildren is a fact of nature of universal acceptance, and this provision should be construed keeping in view this fact. When this testator refers in different parts of this will to his own children he invariably names them. Had the testator intended that the remainder referred to in Article 8 should go to his three children, he would have pursued the method used by him in the other parts of his will. If George W. died leaving children, these would be his heirs. It is quite unlikely that the testator contemplated that the three children of George might die before his own children, and that in his use of the term "heirs" he intentionally used a term which might include the sisters and brother of George W., or the three grandchildren. The testator's purpose was to provide for his own children, and then for their children.
A fourth child was born to George W. Cornell five days before the testator's decease, but as the testator never knew of the birth of this child, no duty rested upon him to make his will correspond with the fact and to change the language from three to four portions. His intention existent at the execution of his will to give these remainders to his grandchildren could not be varied by a fact subsequently occurring of which he had no notice. This language, read in the light of the circumstances surrounding this testator, may reasonably be construed to indicate the use by the testator of heirs instead of children. When he executed the will his purpose was to give to his son George in no event a greater interest than a life interest. George had then three children. When the testator gave this remainder "to his heirs . . . . in three equal portions," he unquestionably referred to the portions which each grandchild would have; and he emphasized this by the addition "share and share alike forever." Equality in the distribution was his reiterated purpose. Among what *Page 399 heirs could he divide this in three equal portions? There were none to whom the three portions could apply except these living children of George, or the living children of the testator. Unless the three was intended to apply to either his three living grandchildren or his living children, it had no meaning, since the testator had no means of knowing how long he would live or how many heirs of George would be living at his decease. He could not then name the heirs nor the number of portions needed to give each heir an equal portion. He did know the number of his children and of his grandchildren.
The words "in three equal portions share and share alike forever" are a part of the same phrase, and immediately follow the term "heirs" unseparated by punctuation. They qualify, explain, and limit the meaning of heirs. Nowhere in the will or in the surrounding circumstances is there any explanation or any fact suggestive of any to whom the three portions should apply except the three living grandchildren, or the three children of this testator, and we have already pointed out that the children of the testator were not intended. "Heirs" meant the children of George W. living at his death. If this be the true construction, the intention of the testator was to benefit immediate descendants, those living at his decease and not those born thereafter.
The devise in Article 9 of the residue to the trustees for the use of George W. Cornell for life "and upon his decease to his heirs forever" does not contravene the statute against perpetuities. "Heirs" is used in the sense of children. To hold otherwise would accord to the word "heirs" in Article 9 a different meaning from that attached to it in Article 8. This would violate a cardinal rule of construction — the 18th of Jarman's rules — that "words, occurring more than once in a will, *Page 400 shall be presumed to be used always in the same sense, unless a contrary intention appear by the context, or unless the words be applied to a different subject." 2 Jarman on Wills, pp. 840-843 (5th Amer. Ed., Vol. 3, pp. 702-709); Allen's Appeal, 69 Conn. 702, 707,38 A. 701; Green v. Huntington, 73 Conn. 106, 113, 46 A. 883;Wood v. Wood, 63 Conn. 324, 328, 28 A. 520.
The word "heirs" in Article 9 is applied to the same subject as in Article 8, and there is nothing in the context or surrounding circumstances which suggests a contrary intent. In maintaining this construction we are upholding the validity of this provision of the will and carrying out the testator's intent, and this is the solicitous care of the law.
The Superior Court is advised that questions (a) and (d), upon which its advice is asked by the trustee, should be answered in the affirmative, and questions (b) and (c) in the negative.
No costs will be taxed in this court.
In this opinion the other judges concurred.