A gift to the children of the testator's sons at their death, and a substitutionary gift to nieces and nephews should no such children survive, must vest at the latest at the death of that one of the two sons who lives longest, which is within the period allowed by the rule against perpetuities. A direction by a testator who died in 1926 that the income of his estate should be accumulated until 1950 is in violation of the rule against accumulation, since the period set by him was not measured by any life or lives and was more than twenty-one years. Where a provision for an accumulation is void, courts will endeavor to sustain the substantive gift to which it is attached. In the instant case, although the provision for the accumulation of the income of the estate until 1950 was void, it was held that the clearly indicated intent of the testator as to the disposition of the principal after the death of his two sons and his desire that the sons should receive the income after 1950 should be sustained, but the income of the property until 1950 or until the death of the survivor of the sons if it occur before that date must be regarded as intestate estate and be paid to the testator's heirs at law.
Argued January 9th, 1929
Decided March 2d 1929.
SUIT for the construction of the last will and testament of Vincenzo D'Atro, late of Hartford, deceased, brought to the Superior Court in Hartford County and reserved by the court, upon an agreed statement of facts, for the advice of this court.
Vincenzo D'Atro died November 6th, 1926, leaving a will of which the third paragraph is as follows: "3. I give and bequeath unto my herein mentioned two sons or either of them that may be alive after my death the income from my estate, but not to be distributed until 1950 and beginning in January 1950 and each and every month thereafter, I direct my executor to give to them or either one that may be alive a check or amount not over one-twelfth of the sum earned the previous year 1949 in the way of interest and so to be distributed each and every month thereafter beginning from January 1950 and during the rest of his natural life and after their death if they should leave children I give and bequeath unto said children share and share alike, all the rest, residue and remainder of my estate consisting of the principal amount and interest but my estate is to be kept intact and to be accumulating up to 1950, when a distribution of my income will be given monthly as above mentioned and my estate consisting of the principal and interest is to be held in trust for them by some competent person to be appointed by the probate judge providing the present executor shall not be alive until they arrive at the age of twenty-five years, but meanwhile whatever is needed for their maintenance and education the same is to be provided for said children who will be my grandchildren, but meanwhile up to 1950, I direct my executor to simply keep on investing my assets so as to net not over six per cent per year and give him absolute discretion in so investing it and that no distribution is to be made until 1950 as above mentioned and that the amount of distribution is to be computed from earnings of 1949, in the way of distribution in monthly gifts beginning in January 1950 as above mentioned." In the fourth paragraph he gave $1 to his wife, and in the fifth, for reasons stated, he gave a like sum to his son Frank D'Atro "to be his absolute share in full of my estate." In the sixth and last paragraph he provided: "In the event that my two sons William and Vincent should die without children, then I give and bequeath all my property of every nature and descriptions unto my own living nieces and nephews, share and share alike to be theirs absolutely and to be distributed accordingly." He left surviving him the three sons named in the will, none of whom had children, a sister, and certain nephews and nieces, children of this sister and of a brother and sister who had predeceased him.
The questions presented for our solution are as follows: (1) Does paragraph three of the will violate the rule against perpetuities? (2) Does paragraph three of the will violate the rule against accumulations? (3) Did the decedent die intestate as to the estate attempted to be bequeathed in paragraph three of the will? (4) Does paragraph six of the will violate the rule against perpetuities? (5) If paragraph three of the will is not void, what sons are meant by said paragraph? (6) If paragraph three of the will is not void, upon the death of both of said sons, shall the administrator, c. t. a., or his successor, keep said fund and accumulations intact until the year 1950? (7) If paragraph three of the will is not void, and both of said sons should die without leaving issue, shall the administrator, c. t. a., or his successor, keep intact said fund, with accumulations, until 1950, before giving said fund with accumulations to the nieces and nephews of the decedent as set forth in paragraph six of the will?
Robert J. Travis, for the plaintiff.
Cornelius A. Moylan, with whom, on the brief, were Frank Covello and Francis A. Pallotti, for the defendants Josephine D'Atro Alfano et al. Henry J. Calnen, for the defendants Charlotte D'Atro et al.
While the intent of the testator is very poorly expressed in the third paragraph of the will, it can be discerned without great difficulty. He does not name the two sons who are to be the recipients of his bounty, but that he meant the two other than Frank D'Atro is evident. In the fifth paragraph he makes it entirely clear that he did not intend Frank to share in the general distribution of his estate, and the gift over in the sixth paragraph of "all my property," should the other two sons, whom he names, die without issue, clearly implies that they are the ones to whom in the first instance that property is given. Subject to the provision for accumulation until 1950, he gives the income of the property to these two sons, "or either of them that may be alive," for life; that is, so long as both live, they are to share equally in the income, and upon the death of either before the other, that other is to have the income so long as he lives. At the death of the survivor of the two sons, the estate vests in such children as they may have, if any, "share and share alike." If these sons should both die before 1950, the testator's intent was that the income should nevertheless still accumulate until that date. At that date, if both sons should then be dead, or at the death of the last survivor thereafter occurring, any of the children who had arrived at the age of twenty-five years would become entitled to his proper share in the principal. As to any child not twenty-five years old when he becomes entitled to the enjoyment of his share of the principal, it was to be held in trust until he did arrive at that age; only such sums were to be paid to him as might be necessary for his maintenance and education; as such payments are not restricted to income, they might be made either from principal or income; and on his arrival at the age of twenty-five years, each child would receive any remaining part of the principal of his share and the income from it not theretofore paid to him.
The will is not so insensible as to be void for uncertainty. Nor are any of the gifts invalid under the rule against perpetuities. The gift to the children of the sons, if any survive them, as well as the substitutionary gift in paragraph six to nieces and nephews, should no such children survive, must vest at latest at the death of that one of the two sons who lives longest, which is well within the period allowed by the rule against perpetuities. Bates v. Spooner, 75 Conn. 501, 506, 54 A. 305; Colonial Trust Co. v. Brown, 105 Conn. 261, 272, 135 A. 555.
As the testator died in November, 1926, his direction for the accumulation of the income until 1950 was for a period of something over twenty-three years. The length of time set by him was not measured by any life or lives; if both the sons died before 1950, nevertheless the accumulation was to continue; if they or either of them lived beyond that date, it was then to cease. This situation makes applicable the rule we affirmed in Hoadley v. Beardsley, 89 Conn. 270, 279, 93 A. 535: "The second proposition involves an appeal to the well-established common-law principle, impliedly recognized by us in Woodruff v. Marsh, 63 Conn. 125, 137, 26 A. 846, and in Connecticut Trust Safe Deposit Co. v. Hollister, 74 Conn. 228, 232, 50 A. 750, that trusts for accumulation must be strictly confined within the limits of the rule against perpetuities, and that, if such a trust exceeds those limits, it is void. . . . As applicable to cases where the period during which there is no vesting is measured in no part by a life, its maximum is twenty-one years." "Whenever," says the Supreme Court of Maine, "lives in being do not form part of the time of suspension or postponement, the only period under the rule against perpetuities is twenty-one years absolute." Kimball v. Crocker, 53 Me. 263, 272. "`The rule is that where the testator fails to avail himself of lives in being, and adopts a term of years, without reference to any life in being, the term cannot extend beyond twenty-one years from his death.'" Barton v. Thaw, 246 Pa. 348, 355, 92 A. 312. It is true that there is a considerable body of precedent holding that where a gift of accumulated income is made to one having a vested indefeasible right to the possession of the principal or accumulations, such a provision for accumulation, being void, may be terminated by him, so that there is no occasion for the application of the rule we are considering. Gray on Perpetuities (3d Ed.) § 672. The basis upon which those decisions rest is that it is against public policy to give property to one, and at the same time restrain him from the full use and enjoyment of it; Gray on Perpetuities (3d Ed.) § 120; but we have declined to recognize such a principle so long as the restraint is not for an unreasonable length of time. DeLadson v. Crawford, 93 Conn. 402, 106 A. 326. We have no occasion in the present case, however, to consider how far the rule stated in Gray would be applicable here in view of that decision, because, so long as either of the sons lives, there is no one having such a right to the immediate use and enjoyment of the principal or accumulations as to be in a position to end the period set for the accumulation; Lewis Oyster Co. v. West, 93 Conn. 518, 532, 107 A. 138; and as they or one of them may live beyond 1950, there is that possibility of a violation of the rule against accumulation which makes the provision invalid. Tingier v. Chamberlin, 71 Conn. 466, 469, 42 A. 718; Gray on Perpetuities (3d Ed.) § 214. The provision for accumulation of income until 1950 is therefore void.
We are thus brought to a consideration of the question as to the effect of the invalidity of this provision. In so far as it can be done without doing violence to the intent of the testator, the remaining provisions of the will should be sustained. Tarrant v. Backus, 63 Conn. 277, 285, 28 A. 46; Bates v. Spooner, 75 Conn. 501, 508, 54 A. 305; Eaton v. Eaton, 88 Conn. 269, 276, 91 A. 191; Shepard v. Union New Haven Trust Co., 106 Conn. 627, 636, 138 A. 809. Where a provision for an accumulation is void, courts will endeavor to sustain the substantive gift to which it is attached. Phelps' Exr. v. Pond, 23 N.Y. 69, 82; Philadelphia v. Girard's Heirs, 45 Pa. 1, 27. The testator clearly intended the principal of the trust to go, at the death of the survivor of the two sons, either to their children, if any, or to his nephews and nieces, and there is no reason why this intent of the testator should not be sustained. He also desired that, beginning in 1950, the two sons should receive the income from his property and while, because the provision for an accumulation is void, the property may not be augmented that way, still the sons or the survivor of them are entitled to receive the income of the principal sum after 1950 until that survivor shall die. This leaves the question of the disposition of the income of the property until 1950 or until the death of the survivor of the sons, if it occur before that date, and as the void provision for accumulation is a part of the residuary gift, this income must be regarded as intestate estate and be paid to the testator's heirs at law. Cochrane v. Schell, 140 N.Y. 516, 537, 35 N.E. 971; Kimball v. Crocker, 53 Me. 263, 273.
In so far as the unborn children of the testator's sons other than Frank are concerned, the conclusions we have reached are as favorable to them as they could possibly claim; and, while the construction of that paragraph which designates the two sons other than Frank as the recipients of the testator's bounty has the effect of excluding his unborn children from participation under it, the identity of their interests with that of their father as regards this issue and the full argument presented in his behalf justify us in proceeding in the case without the appointment of any person to represent them. Russell v. Hartley, 83 Conn. 654, 664, 78 A. 320; McArthur v. Scott, 113 U.S. 340, 401, 5 Sup. Ct. 652.
We answer the questions propounded to us as follows: To questions one and four, we answer no. To question two, we answer that the provision in paragraph three of the will for the accumulation of income until 1950 violates the rule against accumulation. To question three, we answer that the decedent died intestate as to income from the property given in trust which may accrue before 1950 or before the death of the survivor of the two sons referred to in it if such death should occur before 1950. To question five, we answer that the two sons of the testator other than Frank D'Atro are intended in paragraph three. To questions six and seven, we answer that the administrator, c. t.a., or his successor, are not to keep the principal fund and accumulation intact until the year 1950, but are to dispense the income as it shall accrue in accordance with the foregoing opinion.