The will of Zachariah Huntington gave to his son Thomas M. the legal title to the residue of his estate in trust for the use and benefit of his grandchildren, the children of Thomas M., subject to these provisions and limitations: (a) To sell, convey, and reinvest the trust estate and income therefrom at his discretion. (b) To use any part of the income for his own benefit as required. (c) To pay, transfer, and deliver said property, or any part thereof, and the income therefrom to said children or the legal representatives of any of them who shall have deceased, in such manner and upon such terms and conditions, and in equal or unequal proportions, as said trustee may determine. (d) To associate others with him in said trust, and by deed or will convey jointly with himself said estate to the trustees. (e) To order and appoint by will in what manner, and in what proportion, and upon what trust, if any, said estate, so held in trust as aforesaid, shall be divided to and among his said children or their legal representatives. By this will the legal title is vested in the trustee and the beneficial interest in the children of Thomas M. The power of appointment by Thomas could not transcend the limits of the provisions of Zachariah's will, for Thomas takes from him and acts in his stead in administering his bounty.Bartlett v. Sears, 81 Conn. 34, 42, 70 A. 33.
When these wills were before the court in Johnson v.Childs, 61 Conn. 66, 23 A. 719, three of the children of Thomas had predeceased the testator Thomas, leaving *Page 177 children, and the court held that under the will of Thomas the respective share of each deceased child of Thomas, being a one-quarter part of the principal of the trust estate, vested in the issue of such deceased child free from the trust.
So far as the matters then adjudicated control questions now raised, our decision must be governed by that adjudication, and the conclusions embraced in or underlying that opinion must be accepted by us as fixing the law of those instruments in passing upon questions not then raised, to the end that we may deal with the parties upon an equal basis, and make the wills consistent in operation throughout. Farnam v. Farnam,83 Conn. 369, 374, 77 A. 70.
Were we now passing upon the construction to be given the language of Thomas' will, as interpreted inJohnson v. Childs, 61 Conn. 66, 23 A. 719 — "and in case either of my said children shall die whilst said property shall be held in trust as aforesaid his or her share shall be and belong to his or her children or their legal representatives if any such there be" — we should be obliged to hold, under our decisions, that "legal representatives" meant next of kin or heirs, and included more than immediate descendants, and hence the devise to the legal representatives was void because within the statute against perpetuities; and, further, as we shall have occasion to point out later, was an extension of the power given by the will of Zachariah beyond the valid terms of the donor's grant.
Johnson v. Childs, 61 Conn. 66, 23 A. 719, involved the contingency of a deceased child leaving issue. Our question involves another contingency, the death of a deceased child without issue. Such a contingency the testator attempted to provide for in a clause just succeeding that adjudicated in the former opinion, viz.: "and if any of my said children shall die without leaving *Page 178 children his or her share in said trust fund shall be divided equally among his brothers and sister surviving and the representatives of any deceased child." The construction of this clause formed no part of the former adjudication, nor is any conclusion embraced in or underlying that opinion necessarily involved in the construction of this independent clause. By "representatives" we think the testator meant legal representatives, or heirs. Miller v. Metcalf, 77 Conn. 176, 181,58 A. 743; Curtiss' Appeal, 77 Conn. 310, 59 A. 44;Blakeman v. Sears, 74 Conn. 516, 520, 51 A. 517;Connecticut Trust Safe Deposit Co. v. Hollister,74 Conn. 228, 231, 50 A. 750; Greene v. Huntington,73 Conn. 106, 113, 46 A. 883. Since the representatives of a deceased child may include descendants of remote degree, such a devise is against the statute of perpetuities.
Since the three brothers of Mary predeceased her, the devise as made by the will of Thomas in the event of Mary dying without issue is ineffective. Moreover, the attempt by Thomas to distribute the fund to other than the children of Thomas was in excess of the legal power given him by the will of Zachariah. As we have seen, the power vested in Thomas by the will of Zachariah was to divide the estate among his said children and their legal representatives. The valid part of this power was the division among his children. The division among the legal representatives of his children was invalid.
As the valid is separable from the invalid provision, any legal exercise by Thomas of this valid power of appointment would control in the disposition of Zachariah's estate. Bartlett v. Sears, 81 Conn. 34, 41,70 A. 33.
Since Thomas has not exercised his power of appointment in a valid way, we must have recourse to the will *Page 179 of Zachariah to determine to whom this fund belongs. By that will each child of Thomas took a vested interest in the residue subject to be divested by the valid exercise by Thomas of his power of appointment. This devise is of the entire residue. There is no remainder over or devise to others of this trust estate. There is a provision for permissive distribution of the trust property by Thomas among the grandchildren during their lives, and the income not appropriated goes into the principal of the trust fund. These and other provisions lead to the inference that the testator Zachariah intended to dispose of all the residue and to give it to his grandchildren equally, subject to the power of appointment given Thomas.
By the construction given the will of Thomas inJohnson v. Childs, 61 Conn. 66, 23 A. 719, three quarters of the trust fund, exclusive of the real estate held for the use of Mary, vested in the children of the three deceased children. Each of the four grandchildren of Zachariah was entitled to a quarter interest in this fund, and as three quarters have been distributed to the issue of three grandchildren the testator's intent — equality in the division of the fund among his grandchildren — cannot be attained unless the remaining one quarter is distributed to the estate of Mary.
The proceeds of the real estate, of which Mary has had the use, remains undistributed. As we have held, it vested at the death of Zachariah in the children of Thomas subject to the power of appointment in Thomas, who has failed to exercise it effectively. The intent of the testator will be carried out by dividing the proceeds of the real estate equally among the several estates of the four grandchildren.
The Superior Court is advised that (1) the trust fund in the hands of the plaintiff trustees, exclusive of the proceeds of said real estate, belongs to the estate of