Davies v. Davies

11 A. 500, 55 Conn. 319, 1887 Conn. LEXIS 40

• Court: Supreme Court of Connecticut
• Decided: February 11, 1887
• Status: Published

Opinions

Park, C. J.

The ninth article of the will of the late John M. Davies is as follows: “It is my will, and I hereby direct, that four fifths of the share of any and every of my sons shall be paid to him as soon as it can be conveniently done after my decease; and as to the remaining one fifth, it is my will and I hereby direct that the same be invested in bonds and mortgages, or if it shall be thought best by my executrix and executors in real estate, and kept invested for his use during his life, and that the interest and income therefrom shall be paid to Mm during his life, and that on Ms death the same shall be distributed or go to his personal representatives who would be entitled to his personal estate according to law.”

The testator left three sons surviving him at the.time of his death, who were all of age when the will was made. The share of each in his estate was $166,666, of which the one fifth in question in tins case is $33,333.

One of the sons, Cornelius C. Davies, has since died, leaving a will, and a widow, Grace Welch Davies, one of the defendants, but no issue. By the will he gave all his prop.erty, both real and personal, to his widow, and constituted her the executrix of his will.

The executors of the will of John M. Davies present to this court the following questions for our advice.

1st. Who are the personal representatives of Cornelius C. Davies intended by the testator in the ninth article of his will ?

2d. To whom is it the duty of the plaintiff to deliver the estate now in their hands, under the trust of said ninth article ?—to the defendants who are the heirs at law of said John M. Davies and the next of kin of said Cornelius C. Davies, or to the defendant Grace Welch Davies, who is the executrix and sole devisee and legatee under the will of said Cornelius; or to the defendant Grace W. Davies as the widow, and the other defendants as the legal representatives of said Cornelius, in proportions according to the statute of distributions of this state relating to intestate estate ?

The ultimate gift of the property in question was made to the “personal representatives” of Cornelius C. Davies, “ who would be entitled to his personal estate according to law.” We think this description was not intended to describe parties who might represent Cornelius in an official capacity as executors or administrators; neither was it intended for those who might be his devisees or legatees; but was intended to desiginate his next of kin, who would be entitled to his personal estate by right of consanguinity.

We think it clear that the testator never intended by this description that those should enjoy his bounty Avho might happen to be Cornelius’s executors or administrators, to the exclusion of his children should he leave any surviving Mm. The improbability of such a gift to those who might not only be strangers to the blood of the testator, but strangers to him personally,—strangers who might come within the description by the accident of appointment by Cornelius as executors of his will or by the probate court as administrators of his estate, would be so great that it would require unequivocal language to establish it. _As said the Lord Chancellor in Palin v. Hills, 1 Mylne & K., 470,—“If by personal or legal representatives, or executors or administrators, we suppose the testator to mean those whom the legatee might appoint executors, or those to whom the Ecclesiastical court might give administration, we presume a great improbability, to wit., that he should leave it to the choice of another, or the accident of a grant of administration, to determine in what channel His bounty sHould flow.”

SucH a gift would have put it in the power of Cornelius to make a disposition of the property, in effect, to whomsoever he would, for he could select whatever party or parties he might feel disposed to be his executor or executors, and he might make the selection in order that others might have the property, to the exclusion of his children.

All this he might do when no power of appointment has been given to him directly in the will, and no such power has been given unless intentionally given in the indirect manner suggested. This seems preposterous; and especially so when we consider that the testator granted the power of appointment in the sixth and tenth articles of his will to his widow in one case and to his daughters in the other, and the grants are made in clear and direct terms. The conclusion is irresistible, that if the testator had intended that the sons should have this power, the grant would have been made in equally explicit and direct language.

Again, the cases are numerous, both in England and in this country, where the words “ personal or legal representatives,” when used by a testator to describe the objects of his bounty, have been construed to mean natural representatives and not legal representatives—representatives in the sense of next of kin, and not representatives in an official or fiduciary capacity.

In the ,old and leading eases of Bridge v. Abbott, 3 Bro. C. C., 224, and Cotton v. Cotton, 2 Beav., 67, the gift was to certain devisees, and in case of the death of either, then to his or her “legal representatives.” And in the latter case one of the devisees had died leaving a will. But the master of the rolls held that the next of kin in both cases were entitled, to take as the representatives intended by the testator. In Baines v. Ottey,, 1 Mylne & K., 465, the trust was for M. K. for life, with remainder as she should appoint, and in default of appointment in trust to transfer and assign the personal estate to and among such person or persons as would be the personal representatives of M. K. These words of distribution were held sufficient to show that the executors were not intended, but that persons who could take beneficially must be the parties intended. In Robinson v. Smith, 6 Sim., 47, the trust was for the life of a daughter, and after her decease to pay the trust moneys to such persons as she should by will appoint, and in default of appointment to her “personal representatives.” The next of kin were regarded as the persons intended. To the same effect is Walter v. Makin, 6 Sim., 148. In Smith v. Palmer, 7 Hare, 225, and King v. Cleveland, 4 De G. & J., 477, a direction for a distribution among “ legal representatives ” was held to mean the next of kin. In In re Grrylls’ Trusts, L. R., 6 Eq., 589, a legacy was given in trust for a married daughter for life, with power of appointment, and in default of appointment to transfer the same to such persons as would be her “personal representatives” in case she had died sole and unmarried. The vice-chancellor said:—“It is a most improbable thing that the testator meant his daughter’s executor or administrator to take beneficially.” The next of kin took the property. In Briggs v. Upton, L. R., 7 Ch. App., 376, the marriage settlement was in trust for the life of the wife, with power of appointment, “ and in default of such direction or appointment, then upon trust to pay or transfer the trust moneys unto the legal representatives of the said J. B. in a due course of administration.” It was urged that these words, “in due course of administration,” indicated the executors as the legal representatives, but the lord chancellor said:—“I do not think that to be the natural meaning of the words. The natural meaning of the words would be that the trustees were to pay it over to those who in a due course of administration beneficially represented him, and that of course would bring in the statute with reference to the administration of intestate estates.”

In this country the English cases, giving to “ representatives ” the significance of “ next of kin,” have been generally followed. 2 Redfield on Wills, 78. Such has been particularly the case in the state of New York, where the will in question was executed, and in reference to whose laws, presumably, it was made.

The case of Drake v. Pell, 3 Edw. Ch., 270, is a leading one in that state. The bequest was of personal property in trust for the benefit of nine children of the testator, with this provision, “ and in case any of my said children shall die after me under the age of twenty-one years, and leaving a child or children him or her surviving, then the share, portion or interest of the child so dying shall go to the heirs, devisees or legal representatives of the child so dying.” One of the sons died a minor and intestate, leaving a widow and two children; and the question was whether the son’s adminstrator took as his legal representative, or his children, as his next of kin. In deciding the question the court say:—“ And with respect to the words ‘ legal representatives,’ if the property transmitted be personal estate,, the persons desiginated by and answering to this description are those who, by the statute of distributions, are known as the next of kin, and not the executors or administrators of the deceased child. The testator doubtless meant those who should take beneficially to themselves as owners, and not in a mere official or representative capacity in the right of a deceased child.” The two grandchildren of the testator were declared to be-the parties described to take under the will, and tlie mother of the children to be entitled to no interest in the property.

The case of Tillman v. Davis, 95 N. York, 17, fully and clearly shows that the law of New York excludes the widow and husband from the class of “ next of kin ” in personal property and from “heirs” in real estate. In that cuse the testatrix gave property to her executors in trust for the use of her husband during life, and then directed its division into a number of shares, each of which she gave to a beneficiary, and then the will provided that “ the heirs of any or either of the foregoing persons who may die before my husband, to take the share which the person or persons so dying would have taken if living.” One of the persons died in ■ the lifetime of the husband, leaving a widow, to whom by his will he gave all his property. The court held that the widow took nothing by her husband's devise to her, but that his heirs took by substitition under the original will. -It was also held that the word “ heirs ” was to be construed as “next of kin,” which did not include the widow.

The word “ representatives ” has also been regarded as meaning “next of kin ” in Brokaw v. Hudson’s Executors, 27 N. Jer. Eq., 135. In this case the gift was made to the testator’s sister “ or to her representatives.” The court say :—: “In a gift of personal property, where the substitutes of the primary legatee are described by the word ‘representatives,’ those will take who have the right to represent the primary legatee as next of kin under the statute of distributions, and not his executors or administrators.”

But we think, aside from the adjudged cases on the subject, that the language of the description of the parties who are to take the remainder of the property in question, clearly excludes both the executors and administrators of Cornelius C. Davies and his legatee and widow. The language is:—“ Shall be distributed and go to the personal representatives of Cornelius C. Davies, who would be entitled to his personal estate according to law.” The last words, we think, make it clear that the testator meant by “ personal representatives ” those who would be entitled to the personal estate of Cornelius by right of consanguinity; that is, who would be entitled by natural right—by relationship—by being next of kin.

But it is said that the title to the one fifth share of Cornelius C. Davies was vested in him as much as the title to the four fifths, and consequently that he had the right to dispose of it by will, as he did to his wife.

But John M. Davies, the original testator, disposed of the title to the one fifth to the next of kin of Cornelius, as we have seen; how then could Cornelius convey it to another party ? He had no power of appointment. He had only the interest and income of the one fifth. This is as clear as language could make it. The testator manifestly intended to put so much of the share of Cornelius beyond the reach of his creditors, in case financial disaster should befall him. There could have been no other object in view in regard to the one fifth. The testator said hi effect in his will—come what may, so much shall be saved from the wreck of Cornelius’s estate, for his support, and for the benefit of his next of kin.

"We therefore, in answer to the questions propounded by the executors for our advice, say that the personal representatives of Cornelius C. Davies are his next of kin; and that the property in question should be delivered to the defendants who are the heirs at law of John M. Davies and the next of kin of Cornelius C. Davies.

In this opinion Pardee and Loomis, Js., concurred.