In construing a testamentary provision of doubtful meaning, the terms of an earlier will, executed two weeks prior to the one in question, may be considered as part of the circumstances surrounding the execution of the later will. A gift over "of the avails arising from the improvement of the farm," was not a devise of the fee where it was apparent the testator used the word "improvement" in its familiar sense of a beneficial use. A gift over "at Dexter Remington's decease" to "the heirs of said Dexter and Jane M. Ford," was not a gift to the latter's heirs, but to her directly, in view of the obvious intention of the testator, gathered from the surrounding circumstances, to benefit her during her lifetime. Under the statute of perpetuities in force at the death of the testator, the gift over "to the heirs of said Dexter" after his decease, was void. There was no merit to the claim that certain proceedings instituted in the Superior Court in 1866 resulted in any judgment decisive of the questions in the present suit. The entry on the back of the original petition in those proceedings — "bill dismissed with costs taxed at the sum of $40" — was evidence of a final disposition of the cause denying the plaintiff's claims for relief. This court will not give advice in the construction of a will where one or more persons to be affected are not parties to the suit.
BEACH, J.
Answering question one, we are of opinion that the gift over at the death of Dexter Remington, of "the avails arising from the improvement of the farm" does not convey the fee. If the testator so intended, he has not used words capable of that construction. If the gift had been of "the avails of the farm," and if a direction to the executor to sell the farm had been expressed, or could reasonably have been inferred, an intent to make a final distribution of the proceeds of such sale would have been manifested. But the gift is limited to the avails arising from the "improvement" of the farm, and the decisive point is what the testator meant by the use of the last quoted word. The antecedent life estates in Dexter Remington are created by the words "Dexter Remington to use, occupy, and improve so much of my house as my executor may determine," etc., and, in the same sentence as the gift over, "at the decease of Thomas Remington, then my will is that Dexter improve and occupy the real estate, and at Dexter Remington's decease the avails arising from the improvement of the farm to be equally divided between the heirs of said Dexter and said Jane M. Ford."
In creating the life estates in Dexter, the testator obviously uses the word improve in its familiar sense of a beneficial use. And in looking back at the will of June 16th, executed about two weeks before the execution of the probated will, we find the same word used in the same sense, and in a clause corresponding closely to that under discussion; viz.: "After my decease my real estate to be used and occupied and improved by Dexter Remington, so long as he lives, and at his decease the real estate to be used and occupied and improved by Jane M. Ford, wife of Horace K. Ford, and at the decease of the said Jane M. Ford, the avails from working the farm to be equally divided between the heirs of the said Dexter and the said Jane M. Ford." Evidently the words "avails from working said farm" in the former will mean the same thing as "avails arising from the improvement of the farm" in the probated will. We think the gift in question must be construed as a gift of the proceeds arising from the use or working of the farm, to be divided equally between the heirs of Dexter and Jane M. Ford.
Answering question two, we are of opinion that the intended beneficiaries of the gift were the heirs of Dexter and Jane M. Ford herself. It will be noted that Jane was living when the will was executed and at the testator's death; that she is now mentioned for the first and only time in the will, and as her death is not suggested in the will and the gift is to her by name, the reference is almost necessarily to her as a living person. Looking again at the will of June 16th, which is so nearly contemporaneous that its recent execution is one of the circumstances surrounding the execution of the probated will, we find that the testator then made provision for Jane during her life by absolute gifts and life interests. In the probated will all these provisions are wanting. She receives nothing until Dexter's death and then the proceeds of the improvement of the farm are to be equally divided "between the heirs of said Dexter and Jane M. Ford." To insert by construction the words "heirs of" before Jane's name would cut her off entirely from the testator's bounty, and impute to him an entire change of testamentary intent in that respect, which is not warranted by his language or accounted for by any fact stipulated. It was entirely natural that after having made other provision for her in her lifetime he should, in the former will, leave one half of the "avails from working said farm" to her heirs at her decease; and it is equally natural that having revoked all other provisions in her behalf by the probated will he should leave one half of the avails arising from the improvement of the farm to her at the death of Dexter.
To both subdivisions (a) and (b) of question three, we answer, No. We cannot see that the proceedings instituted by Thomas Remington in the Superior Court in 1866 resulted in any judgment decisive of the merits of the cause now before us. Question four is so phrased as to require an answer to the question whether the heirs of Dexter Remington take under the will, and since the statute of perpetuities, now repealed, was in force at the death of John Fuller, we are bound to say that the gift over to the heirs of Dexter, after his decease, was invalid and of no effect. Leake v. Watson, 60 Conn. 498, 21 A. 1075.
As to the fee of his real estate, the testator died intestate, and at his death the fee vested in interest in his sisters, Mary Remington and Eliza Fuller, as tenants in common; and it now appears by the amended stipulation that Mary Remington by her will left all her estate absolutely to Dexter Remington. This last fact has, however, nothing to do with the construction of John Fuller's will.
That fact is however, material in answering question five, as to what effect, for the purpose of the distribution of the real estate, should be given to the quitclaim deed to Thomas Remington executed by Jane and Horace Ford in 1864; for it now appears that Jane Ford never acquired any interest in her mother's share of the fee in the real estate, and hence her quitclaim operated only as a conveyance of her share of the avails arising from the improvement of the farm. We are not asked to advise the administrator as to the distribution of Eliza Fuller's share of the fee in the real estate, nor could we, in the absence of her heirs, undertake to do so.
To question six, we reply that the entry on the back of the original petition in the case of Thomas Remington vs. Horace K. and Jane M. Ford, et al., "Bill dismissed with costs taxed at the sum of $40," evidences a final disposition of the cause denying the plaintiff's claims for relief.
The seventh question has already been answered in the negative.