In re Estate of Brewster

480 A.2d 597, 2 Conn. App. 573, 1984 Conn. App. LEXIS 702
CourtConnecticut Appellate Court
DecidedSeptember 11, 1984
Docket2425
StatusPublished

This text of 480 A.2d 597 (In re Estate of Brewster) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Estate of Brewster, 480 A.2d 597, 2 Conn. App. 573, 1984 Conn. App. LEXIS 702 (Colo. Ct. App. 1984).

Opinion

Hull, J.

This appeal1 by the guardian ad litem for unborn and unascertained remaindermen under the will of the decedent, Frederick F. Brewster, is from a judgment of the trial court ordering the Hamden Probate Court to approve the trustee’s account under that will for the 1980-81 trust year. The guardian ad litem alleges that the court erred by construing the will in a manner which allowed the trustee to pay the entire income of the trust in question to the beneficiary thereof during the 1980-81 trust year. We find no error.

The facts are not in dispute. The will of Frederick F. Brewster, duly probated in the district of Hamden, created several trusts, one of which was for the benefit of his granddaughter, Pamela Brewster Duffy (The Duffy Trust).

Pamela Duffy was bom on May 24,1956, and reached the age of twenty-one in 1977. The Duffy Trust was similar to eight other trusts created by the testator for each of his grandchildren. Each of the trusts provides, essentially, that from the date of the creation of the trust until the beneficiary of that trust reaches the age of twenty-one, the income may be used and expended by the trustee, at its discretion, for the support, maintenance, education and welfare of the beneficiary. After [575]*575the beneficiary’s twenty-first birthday, the trustee is directed to pay to her one half of the annual trust income, and, upon the occurrence of the beneficiary’s thirtieth birthday, the trust terminates and the corpus is to be transferred to her.2

On April 3,1980, when Pamela Brewster Duffy was twenty-three years of age, she requested that the trustee pay her all of the net trust income under her trust so that she could pay off a demand note which she had made. The trustee paid over to her the trust income in the amount of $69,130.26 and, on October 23, 1981, it filed its annual account for the trust with the Hamden Probate Court.

[576]*576After a hearing on this account, held as a result of the objection of the guardian ad litem for unborn and unascertained remaindermen, the Probate Court disallowed the account on the grounds that the distribution of the income to Duffy was contrary to the provisions of the will. The trustee appealed to the Superior Court and the matter was referred to a state referee for further hearings. The referee sustained the appeal and ordered the Probate Court to approve the trustee’s account. From that order the guardian appeals, claiming error in the referee’s construction of the will.

The focus of this appeal is whether the referee properly construed that portion of the will which delineates the powers and duties of the trustee over the portion of the trust income which is not paid to the beneficiary as a matter of right. While the terms of the trust are clear that one half of the annual trust income is to be paid to the beneficiary yearly, it is as to the other half of the income that a dispute arises. Clause (b) of part II of article nine of the will,3 while it expressly modifies the obligation of the trustee to the benefici[577]*577ary once she reaches the age of twenty-one, does not expressly revoke the trustee’s power to use and expend the trust income, at its discretion, for the support, maintenance, education and welfare of the beneficiary.

It is a long accepted canon of construction that “[w]ords . . . are not to be construed as importing a condition if they are fairly capable of a different construction.” Hershatter v. Colonial Trust Co., 136 Conn. 588, 594-95, 73 A.2d 97 (1950). Similarly, “an express and positive devise or bequest in fee cannot be cut down to an inferior estate by a subsequent clause in the will unless that is equally express and positive. Fanning v. Main, 77 Conn. 94, 99, 58 A. 472 [1904]; Hull v. Hull, 101 Conn. 481, 486, 126 A. 699 [1924]; Peyton v. Wehrhane, 125 Conn. 420, 426, 6 A.2d 313 [1939].” Stanton v. Stanton, 140 Conn. 504, 511, 101 A.2d 789 (1953); see also Pond v. Porter, 141 Conn. 56, 65, 104 A.2d 228 (1954).

With respect to the present will, we hold that, absent an express intent to the contrary, the modification of the trustee’s duties which occurs when the beneficiary reaches the age of twenty-one should not be construed to terminate its discretion as to the expenditure of the remaining one half of the trust income for the benefit of the beneficiary.

This construction of the will is further supported by the rule that, if possible, effect is to be given to all parts of a will; Hills v. Hart, 136 Conn. 536, 543, 72 A.2d 807 (1950); and that the separate parts of a will are to be harmonized where possible. Reaney v. Wall, 134 Conn. 663, 667, 60 A.2d 505 (1948); Cumming v. Pendleton, 112 Conn. 569, 574, 153 A. 175 (1931). Here, the only way to give this entire provision of the will continuing application after the beneficiary of the trust attains the age of twenty-one is to interpret it to pro[578]*578vide the trastee with continuing discretion over the half of the annual income not distributed as a matter of course.

In addition, in clause (d) of part II of article nine of the will, the intent of the testator on this issue is further demonstrated. That provision dictates that, upon reaching the age of thirty, the beneficiary is to receive the corpus of the trust and “any accumulated, unexpended or accrued income.”4 It is clear from this provision that the testator did not intend that a set sum would be accumulated at the termination of the trust. The testator’s use of the word “unexpended” here suggests that he foresaw the situation in which there would be no unexpended income from the trust. It definitely suggests that the amount which might be left at the termination of the trust was very uncertain. Certainly, if the trustee’s discretion ended when the beneficiary attained the age of twenty-one, it would be guaranteed that one half of the income for at least nine years would have accumulated. Yet, the testator did not intend or provide for this result, or he would have inserted the words “all income” or simply “the income” instead of “any income.” See Hartford-Connecticut Trust Co. v. Hartford Hospital, 141 Conn. 163, 169, 104 A.2d 356 (1954); New Haven Bank v. Hubinger, 117 Conn. 417, 424, 167 A. 914 (1933). Rather, he conceived that during the nine years immediately prior to termination of the trust, some or all of that income might be distributed to the beneficiary.

Having determined that the trustee did have the discretion to disperse the remaining trust income, we cannot say that the trustee’s disbursal of those funds was, in this case, an abuse of that discretion.5 The terms [579]

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Related

Pond v. Porter
104 A.2d 228 (Supreme Court of Connecticut, 1954)
Hartford-Connecticut Trust Co. v. Hartford Hospital
104 A.2d 356 (Supreme Court of Connecticut, 1954)
Stanton v. Stanton
101 A.2d 789 (Supreme Court of Connecticut, 1953)
Jackson v. Conland
420 A.2d 898 (Supreme Court of Connecticut, 1979)
Hershatter v. Colonial Trust Co.
73 A.2d 97 (Supreme Court of Connecticut, 1950)
Hills v. Hart
72 A.2d 807 (Supreme Court of Connecticut, 1950)
Fanning v. Main
58 A. 472 (Supreme Court of Connecticut, 1904)
New Haven Bank, N. B. A. v. Hubinger
167 A. 914 (Supreme Court of Connecticut, 1933)
Cumming v. Pendleton
153 A. 175 (Supreme Court of Connecticut, 1931)
Reaney v. Wall
60 A.2d 505 (Supreme Court of Connecticut, 1948)
Hull v. Hull
126 A. 699 (Supreme Court of Connecticut, 1924)
Cromwell v. Converse
143 A. 416 (Supreme Court of Connecticut, 1928)
Stempel v. Middletown Trust Co.
15 A.2d 305 (Supreme Court of Connecticut, 1940)
Hoops v. Stephan
38 A.2d 588 (Supreme Court of Connecticut, 1944)
Peyton v. Wehrhane
6 A.2d 313 (Supreme Court of Connecticut, 1939)

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Bluebook (online)
480 A.2d 597, 2 Conn. App. 573, 1984 Conn. App. LEXIS 702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-brewster-connappct-1984.