Sanson v. Bushnell

The purpose of this suit is to pass the accounts of the plaintiff as a trustee under the last will of Giles Bushnell, deceased, and of a former trustee under the same will; and also to obtain a judicial construction of the will in question. At the trial the counsel for the respective parties stipulated that Giles Bushnell, the testator, died in 1862, leaving a will, which was proved September 2, 1862, and a copy of which is attached to the complaint; that Anna Bushnell, the testator’s wife, died July 26, 1868; that Anna Maria Bushnell, the testator’s daughter, died April 9, 1897; that Henry, William, and Ira Bushnell, brothers of the testator, are dead; that John A. Bushnell, son of William Bushnell, a brother of the testator, died July 16, 1874, leaving issue him surviving, viz. Horace B. and John Adams Bushnell, defendants herein; that Emanuel Bushnell, son of William Bushnell, died December 13,1897,' leaving issue him surviving, viz. John Archibald and Virginia A. Bushnell, Mary Anne Fox,-and Eleanor L. Dixon, defendants herein; that, after letters testamentary had been issued to Chalkley J. Wills and John Drinker, and after they had died, James V. Kirby was duly substituted as trustee under the will, and acted as such until his death, on July 9, 1897; and that, on July 19, 1897, the plaintiff was appointed trustee ui^der the will in the place of James V. Kirby, deceased. The counsel further stipulated.that all questions touching the accounts be held in abeyance until the decision of the court construing the ninth clause of the will in question. The thirteenth article of the stipula

The decision of this case has been somewhat delayed, and the labor incident thereto materially increased, by the necessity of examining 80 reported cases, which the counsel in the case have, collectively, cited in their briefs. Upon referring to these authorities, many of them have been found either to be cumulative to a particular point, or to relate to venerable principles which have long since passed out of the field of doubt or controversy. All the counsel on either side are agreed that the focal point in the case is the true construction of that clause of the will in question which is numbered “Ninthly.” It reads as follows, viz.:

“Ninthly. All the rest, residue, and remainder of my estate I give, devise, and bequeath to my said trustees, in trust, nevertheless, to uphold and manage the same, pay taxes, assessments, insurance, and repairs, and collect the interests, rents, issues, and profits thereof, and pay and apply the same semiannually to the use, comfort, maintenance, and support of my said wife and my said daughter during their lives and the life of the survivor of them, and on the death of the survivor of them I give and devise to, and direct my said trustees to divide and distribute the same to and among, the then living children of my said brothers Henry, William, and Ira Bushnell, equally, share and share alike.”

The supreme law of wills being the intention of the testator, the first question in logical order and importance is, what disposition did the testator intend to make of his estate? Looking to the instrument itself, the character of the testator, and his family relations and circumstances, so far as they are to be gathered from the will, we find in the testator a man of business experience and training, who had acquired what 40 years ago, when he made his will, would have been regarded as a very considerable fortune. His immediate family appears to have consisted of himself, his wife, a son, and a daughter. The last he described as his “unfortunte and afflicted daughter.” The

In behalf of the grandnephews and grandnieces, it is argued that, because the testator apparently expected that his widow would survive his daughter, he intended that the interest of the brothers’ children in his estate should vest at the time of the death of the widow, and not at the death of the survivor of the widow and daughter. But this is a construction which does violence to certain features of the will which demand attention. The affliction of the daughter, which I infer was mental as well as physical, certainly made her welfare uppermost in his thought, and his chief concern. It was natural that he should anticipate the daughter’s death before that of her mother, but he was too sensible and far-sighted a man to rest upon this probability

Counsel for the grandnephews and grandnieces have urged, with much ability and learning, that the sense of the word "children,” used in the will when reference is made to the children of the testator’s brothers, should be enlarged so as to include their descendants. This extension of the word "children” has been made in cases where the manifest intention of the testator required it to be done in order to effectuate that intention; and, in some instances, to prevent disinheritance of testator’s lineal descendants. But this is not such a case. I conceive the intention of the testator was not to include, but to exclude, his brothers’ descendants beyond the degree of children. His duty to his brothers’ descendants, if he owed them any, and probably his interest in them, ceased at the point where they appeared as the grandchildren of his brothers. The rule is familiar that in a will the word “children” must be understood in its primary sense; and, as nothing appears here to indicate that the testator used the word in any other than its common signification, it must be held in this case not to include the grandchildren of the testator’s brothers. See Palmer v. Horn, 84 N. Y. 516 . Whether an estate is vested or contingent is, primarily, of course, a question of the intent of the

Let a decision and a decree in conformity with these views be presented for settlement on notice to all parties.