A testator, who died in 1888, gave the residue of his property to trustees, who were directed to pay over the net income of a certain proportion thereof to a daughter F during her life, and at her decease to "pay over and deliver" the same to her issue, if she should leave any, and if not, to the testator's "heirs at law exclusive of my said daughter." Similar provision was made, and in the same language, for another daughter and for two sons. F died in 1912 without issue, and in a suit to determine the disposition of this portion of the trust fund, which comprised money and securities amounting to about $200,000, it was held: — 1. That the direction to the trustees "to pay over and deliver" the property imported a gift of the principal itself. 2. That the "heirs at law" designated by the testator as the recipients of the gift over, in case F should die without issue, were those who stood in that relation to him at his death, viz, his children. 3. That the limitation over created a vested interest in each of the children other than F, and that this interest was alienable and transmissible by inheritance, though the right to enjoy the property was postponed and might have been entirely defeated had F died leaving issue. 4. That such a limitation over was not in contravention of the statute against perpetuities which was in force in 1888. 5. That while the gift over to the heirs at law was one to a class, in the sense that it was one to a group of persons designated not by name but by a general descriptive term, the members of the class nevertheless took as tenants in common, and not as joint tenants with the right of survivorship. The law of this State, unlike the common law, prefers a tenancy in common to a joint tenancy; and this difference may lead to important consequences in the construction of wills or grants where gifts are made to several persons or to a class without any, or at least with only doubtful, indication of the nature of the estate intended to be created. Under the common law the prima facie presumption would be that the donees took as joint tenants, while under ours that they took as tenants in common. The law favors vested estates. A construction which will render a bequest valid and operative is to be preferred to one which makes it illegal, if the language is fairly susceptible to either interpretation. The word "heirs" in its primary meaning designates those who, in the absence of a will, are by law entitled to inherit the real estate of a decedent; and it will be construed accordingly unless the will indicates that it was used by the testator to signify some one else.
PRENTICE, C. J.
"The law favors vested estates." Connecticut Trust Safe Deposit Co. v. Hollister, 74 Conn. 228, 231, 50 A. 750; Carpenter v. Perkins, 83 Conn. 11, 17, 74 A. 1062. "If two modes of construction are fairly open, one of which will turn a bequest into an illegal perpetuity, while by following the other it will be valid and operative, the latter mode must be preferred." Wolfe v. Hatheway, 81 Conn. 181, 185, 70 A. 645; Nicoll v. Irby, 83 Conn. 530, 534, 77 A. 957. "The word `heirs,' in its primary meaning, designates those who in the absence of a will are by law entitled to inherit the real estate of a deceased." Nicoll v. Irby, 83 Conn. 530, 534, 77 A. 957; Perry v. Bulkley, 82 Conn. 158, 168, 72 A. 1014. "This is the meaning which is to be given to it in the construction and interpretation of wills, unless, when read in the light of the circumstances surrounding the testator, it clearly appears from the will itself that he used the words in a different meaning." Hartford Trust Co. v. Purdue, 84 Conn. 256, 258, 79 A. 581; Wilde v. Bell, 86 Conn. 610, 614, 87 A. 8. This is the rule of general recognition. Gardner, in his work on Wills, p. 447, states the pertinent phase of it as follows: "Where the limitation over is to the heirs of the testator, this class is determined as of the death of the testator, in the absence of a testamentary intent to the contrary." To the same effect, see Page on Wills, § 547. We adopted and applied this principle in Johnson v. Webber, 65 Conn. 501, 512, 33 A. 506.
This will furnishes no indication that the testator used the words "my heirs at law" in any other than their usual and normal signification. The only side light thrown upon the subject is that drawn from the provision in connection with each of the limitations over, which excludes from the class entitled to share in the remainder the child who had enjoyed the life use. Evidently those whom he had described as his heirs at law in this connection were represented in his mind by the group as it should be when he should die — children presumably — and not by some group of uncertain size and membership which might be formed in the years during which some one of his children might be expected to live.
These recognized principles and conditions lead inevitably to the conclusion that the heirs at law designated by the testator as the recipients of the gift over in the event that Mrs. Huntington should die without issue were those who stood in that relation to him at his death, to wit, his five children. The language of the will, that the property should be paid over and delivered, imports a gift. Angus v. Noble, 73 Conn. 56, 64, 46 A. 278; Johnson v. Webber, 65 Conn. 501, 513, 33 A. 506.
The limitation over to them and each of them created a vested interest in the sense that each took an estate which was alienable and transmissible by inheritance. It does not militate against this result that the vesting in enjoyment was postponed to some uncertain and future time, or that such vesting might be entirely defeated by the happening of the event that Mrs. Huntington should die leaving issue. The limitation over was one with a double aspect. Thomas v. Castle, 76 Conn. 447, 451, 56 A. 854; Sumner v. Westcott, 86 Conn. 217, 220, 84 A. 921. The donees of the remainder, in the event of the life tenant's death without issue, took a vested interest, defeasible in the contingency named. Ingersoll v. Ingersoll, 77 Conn. 408, 410, 59 A. 413; Perry v. Bulkley, 82 Conn. 158, 169, 72 A. 1014; Carpenter v. Perkins, 83 Conn. 11, 17, 74 A. 1062; Sumner v. Westcott, 86 Conn. 217, 220, 84 A. 921.
Testamentary provisions creating such limitations over vesting in interest immediately upon the death of the testator are not in contravention of the statute against perpetuities. See cases last cited.
The gift over to the heirs at law was one to a class in the sense that it was one to a group of persons designated, not by name, but by some general descriptive term. Mrs. Camp reasons from this that the members of the group or class took as joint tenants, and therefore with the incident of survivorship attached to their estates. This contention assumes two aspects, one as to the nature of the estate which vested in the heirs, and the others as to the incidents of that estate if found to be that of a joint tenancy.
Our law prefers a tenancy in common to a joint tenancy. Bill v. Payne, 62 Conn. 140, 142, 25 A. 354. In this respect we differ from the common law which favored joint tenancies. 2 Blackstone's Commentaries, 193. "There may be joint tenancies in this State, but survivorship as an incident thereto has never been recognized here. There is here practically no difference between a joint tenancy and a tenancy in common. Each tenant is seized of an undivided share of the whole, proportioned to the number of tenants, as was the case at common law in tenancies in common. But at the common law, in the case of a joint tenancy, each tenant is seized of the whole as well as of every part — per my et per tout — and it is to this seizin by each of the entirety that the incident of survivorship is due. Upon the death of one, the other or others remain seized of the whole. In this State, therefore, there can be no joint tenancy with the right of survivorship, unless such right is created by the will or other conveyance creating the tenancy. Whether it can be so created, we need not in this case inquire." Houghton v. Brantingham, 86 Conn. 630, 636, 86 A. 664. As far back as 1769 the common-law doctrine of survivorship as between joint tenants was repudiated in this State. Phelps v. Jepson, 1 Root, 48.
The difference in the degree of favor with which joint tenancies and tenancies in common were recognized at common law, and are recognized with us, is one which carries with it important consequences in the determination of the character of the estate created where grants or gifts are made to several persons or to a class without other indication, or with only doubtful indication of the nature of the estate intended to be created. In the one case the presumption, in the absence of explanatory language manifesting the intent, would be naturally and logically in favor of joint tenancies, and in the other in favor of tenancies in common. And so we find that, while the rule of the common law was that a grant or gift to a class imported prima facie that it was to the members of the class as joint tenants, that principle, in those jurisdictions where, as with us, tenancies in common are favored, is reversed, and the presumption is one in favor of tenancies in common. The gift or grant will, in other words, be construed as creating a tenancy in common, unless a different intention on the part of the grantor or testator appears by the instrument of conveyance or will. 2 Underhill on Wills, § 539. The intention, however, if discoverable, will, of course, govern.
In the present instance there is nothing, either in the context, the nature of the gift, or the circumstances, to overcome the presumption that the heirs at law took as tenants in common. On the contrary, it is scarcely conceivable that the testator intended any other result from his gift than that his heirs at law, exclusive of the child benefited by the life use, should take the estate to be at once divided between them. It is plain that the testator had no thought of providing for anything save an ownership in severalty through a distribution made immediately upon the vesting in possession and enjoyment of the remainder over to the heirs at law. Provisions looking to a division have always, even under the common-law rule, been regarded as sufficient to create a tenancy in common. Perkins v. Baynton, 1 Brown Ch. 118; Stones v. Heurtly, 1 Ves. Sr. 165, 166; Delafield v. Shipman, 103 N.Y. 463, 9 N.E. 184; Griswold v. Johnson, 5 Conn. 363, 366.
As there is nothing in the will to create a joint tenancy in the heirs of the testator, we have no occasion to consider, further than we have already incidentally done, the claimed incident of survivorship.
The Superior Court is advised that by the expression "heirs at law," as used in the provision relating to the final disposition, upon the death of Frances E. Blackstone without issue, of the trust estate held for her benefit during her life, contained in paragraphs fourth and fifth of the will, is meant the heirs at law of the testator determined as of the time of his decease; that Wallace S. Allis, as administrator d. b. n. of the estate of J. DeTrafford Blackstone, John T. Almy, as executor of the will of William N. Blackstone, William H. Allen, as administrator d. b. n. c. t. a. of the estate of Louis L. Blackstone, and Mrs. Harriet B. Camp, are each entitled to receive from the trustees of said trust estate a one-fourth part thereof; and that the third and fourth questions upon which advice is asked are to be answered in the negative.
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