(88 Conn. 269) EATON v. EATON et al. (Supreme Court of Errors of Connecticut. June 10, 1914.) 1. WILLS (704*)-CONSTRUCTION-JURISDICTION OF COURT. the death of either to pay to each of the children of the deceased daughter an equal part of her share, discharged of the trust, the gifts to the daughters were life estates, and the limitations over to the children were remainders which on the death of the testator vested in point of right in the children who were then The court, in a suit to determine the va- alive as a class, opening to admit after-born lidity and construction of a will, need only con- children, who on their birth would take a vested sider the rights of the parties in interest as af-interest all subject to be defeated by a further fected by events, as they have occurred, and provision for the defeat of any interest vested questions suggested by the will, which may in children of a child of testator in the conarise in contingencies which have not and may tingency that all of the children should die benot happen, will not be determined. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1680, 1681; Dec. Dig. § 704.*] 2. WILLS (§§ 555, 687*)-CONSTRUCTION-SUBSTITUTIONARY GIFT-LIMITATIONS. A will, which provides for a disposition of a share of testator's residuary estate at the death of each of his two daughters entitled to the income of a trust fund for life, whether the death of the daughters occurs before or after the death of testator, contemplates, in the event of the death of the daughters before the death of testator, substitutionary gifts over, while, in so far as the will contemplates the death of the daughters after testator's death, limitation over after a life estate is created. [Ed. Note. For other cases, see Wills, Cent. Dig. §8 1199-1202, 1204, 1638-1643;' Dec. Dig. § 555, 687.*] 3. WILLS (8 687*)-DIRECTION TO TRUSTEE TO PAY TO PERSONS SPECIFIED. A direction in a will creating a trust to pay to persons named specified portions of the trust estate after the death of a life beneficiary imports a gift. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1638-1643; Dec. Dig. § 687.*] 4. PERPETUITIES (§ 4*)-FUTURE ESTATES. A testamentary gift to descendants of children of testator's daughters, living at his death, is void as contrary to the statute against perpetuities. fore their parent. Dig. §§ 1115, 1638-1643; Dec. Dig. §§ 523, [Ed. Note.-For other cases, see Wills, Cent. 687.*] in DOWN GIFT IN FEE. fee will not be cut down by subsequent proAn express and positive testamentary gift visions less express and positive. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1340-1350, 1608; Dec. Dig. § 601.*1 10. BASTARDS (§§ 102, 104*) - RELATION BETWEEN MOTHER AND CHILD. The relation of parent and child exists beand the child may inherit from her and she tween a mother and her illegitimate offspring, from him. [Ed. Note.-For other cases, see Bastards, Cent. Dig. §§ 251, 254, 255, 257-262; Dec. Dig. §§ 102, 104.*] 11. BASTARDS (§ 102*)-INHERITANCE-STAT- Cent. Dig. §§ 254, 255; Dec. Dig. § 102.* For other definitions, see Words and Phras- [Ed. Note.-For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. § 4.*] 5. PERPETUITIES (§ 4*)—FUTURE ESTATES. A provision in a will creating a trust to pay the income to testator's children for life. which directs that the, lineal descendants of any deceased child shall take the part of the The word "children" in a will is not limshare their parent would have taken if alive, ited to legitimate children, but includes illegitis void as contrary to the statute against per-imate children, in the absence of anything to petuities. show an intent otherwise. [Ed. Note.-For other cases, see Perpetuities, Dig. §§ 1080-1086; Dec. Dig. § 497.*] [Ed. Note.-For other cases, see Wills, Cent. Cent. Dig. §§ 4-44; Dec. Dig. § 4.*] 6. WILLS (§ 473*)-INVALIDITY IN PART-EF-13. WILLS (§ 497*)-CONSTRUCTION-CHILDREN FECT. Where testator created a trust estate to pay the income to his four children, two sons and two daughters, equally for life, and provided that on the death of either of the daughters the trustees should pay to each of the children of the deceased daughter an equal portion of her share discharged of the trust, "the lineal descendants of any deceased child to take the part of such share as their parent would have taken if alive," the invalidity of the gifts to lineal descendants because contrary to the statute against perpetuities does not invalidate the other provisions of the will or any of the gifts prior to the gifts to descendants. [Ed. Note.-For other cases, see Wills, Cent. Dig. $$ 992-995; Dec. Dig. § 473.*] 7. WILLS (§§ 523, 687*) - CONSTRUCTION VESTED ESTATES-DEFEASIBLE INTEREST. Where testator creating a trust estate directed the trustee to pay to his two daughters for life the income, and directed the trustee at -ILLEGITIMATE CHILDREN. Where testator created a trust to pay the income to his daughters for life, directing the trustee at the death of either to pay to each of her children an equal portion of her share discharged of the trust, and knew when executing the will of the existence of an illegitimate child of a daughter, the illegitimate child was included in the absence of anything to show that the word "children" was limited to legitimate children. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1080-1086; Dec. Dig. § 497.*] Wheeler, J., dissenting. Case Reserved from Superior Court, Litchfield County; William S. Case, Judge. Suit by Charles A. Eaton, administrator and trustee of Reuben Eaton, deceased, against Lucy J. Eaton and others, to determine the validity and construction of the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes will of the deceased. Cause reserved on | mentioned herein shall go to his or her survivfacts alleged in the complaint for the advice of the Supreme Court of Errors. Decree ad vised. Reuben Eaton died in 1889 leaving a will with two codicils duly probated, and also a widow and the four children named in the will, who were his only heirs at law. By his will he left the residue and remainder of his estate in trust to three trustees of whom the plaintiff is the sole survivor. By the terms of the trust the trustees were directed to pay to the widow and the children the income of certain specified sums during their natural life. The will then proceeded as follows: "Sixth. Said trustees are directed to divide the rest and remainder of my estate including said sum of six thousand dollars, after the death of my wife and said sum of two thousand dollars, if my wife dies before me, into four equal portions, and after paying themselves a reasonable sum annually for the care of the whole trust fund, said trustees are directed to pay annually to each of my said children aforesaid the use of, and income from said each one quarter portion of my said remaining estate, during the natural life of each, which said remaining estate I give to said trustees as aforesaid for such purpose. In using the word share or shares hereinafter in this will I mean the whole sum held in trust by said trustees for the benefit of each of my said children severally. "Seventh. At and after the death of either of my said sons, respectively, whether they die before or after my decease, said trustees are directed to pay annually to the widow of such deceased son, if any there should be during her widowhood the use of, and the income from one-third of the share of her said deceased hus band, and said trustees are directed to pay, to each of the children of such deceased son an ing brothers and sisters in equal portions, the sister taking the portion of their parent but lineal descendants of any deceased brother or the same is to be held in trust by my said trusdischarged of said trust in the same manner tees, proceeded with and finally disposed of, and as part of the shares given for the use of and to each of my said children. without any lineal descendants living at the "Tenth. If all of my said children should die time of the death of each, then I direct my trustees to pay all my said estate to those persons who would be my heirs at law if I died the time of my death, discharged of said trust without leaving lineal descendants living at and in such case I hereby give, devise and bequeath all my said estate to such persons to them and their heirs." All of the testator's children are still living except Ann Jane Stuart, who died March 2, 1913, intestate, and leaving surviving her a legitimate daughter, Gertrude Stuart Benson, who was born in 1892, and also a grandson, Louis Eaton Sterry, born in 1893, the illegitimate child of Nora Estelle Eaton, who was the illegitimate daughter of said Ann Jane Stuart. Nora was born in 1877 and died in 1896. The administrator upon her estate is included among the parties to the action, as is also the administrator upon the estate of Ann Jane Stuart. The estate in the hands of the trustee consists of personalty only. Neither of the codicils has any bearing upon the questions at issue. The following are the questions upon which the superior court is asked to give its advice: Jane Stuart, the entire share of said trust es"(1) Whether, upon the death of said Ann tate held for her benefit during her life should be paid to her said daughter Gertrude Stuart Benson. "(2) Whether, upon the death of said Ann Jane Stuart, the entire share of said trust estate held for her benefit during her life should be paid to her said daughter Gertrude Stuart Benson and her said grandson Louis Eaton Sterry, share and share alike. equal portion of his said share including that the use of which is to be paid to such widow until her decease or marriage discharged of said trust; the lineal descendants of any deceased child to take the part of such share as their parent would have taken if alive, and I hereby give, devise and bequeath the same to, such children and descendants share and share alike, to each and their heirs, but if any such children or descendants, at the death of such "(3) Whether, upon the death of said Ann son, are under the age of twenty-one years, Jane Stuart, any of said share of said trust my said trustees shall have the care and man-estate held for her benefit during her life is agement of such estate and the same shall be intestate estate, and, if so, what proportion in trust until such children and descendants thereof, and to whom the same should now be arrive respectively at the age of twenty-one paid and distributed. years, and this provision shall apply to each of the shares of my said sons. "(4) Whether any of the provisions, and, if so, which provisions, of the said eighth paragraph of the residuary clause violate the statute against perpetuities in force at the time said will and codicils were made and said Reu "(5) Whether the provision in said eighth paragraph of said residuary clause, viz., the lineal descendants of any deceased child to take the part of such share as their parent would have taken if alive; and I hereby give, devise and bequeath the same to such children and descendants share and share alike to each and their heirs'-is invalid because of such statute against perpetuities. "Eighth. At and after the death of either of my said daughters, respectively whether they die before or after my decease, the said trustees are directed to pay to each of the chil-ben Eaton died. dren of such deceased daughter an equal portion of her share, discharged of said trust; the lineal descendants of any deceased child to take the part of such share as their par ent would have taken if alive; and I hereby give devise and bequeath the same to such children and descendants, share and share alike to each and their heirs, but of any such children or descendants at the death of such daughter are under the age of twenty-one years, my said trustees shall have the care and management of such estate and the same shall be in trust until such children or descendants arrive respectively at the age of twenty-one years and this provision shall apply to each of the shares of my said daughters. "Ninth. If any of my said children shall die without any lineal descendants living at the time of his or her death, whether he or she dies before or after me, then his or her share "(6) Whether, in case the provision quoted in the preceding paragraph is invalid because of said statute against perpetuities, the property which would otherwise pass thereby is intestate estate or belongs and passes to said Gertrude Stuart Benson, daughter of said Ann Jane Stuart. "(7) To whom and in what proportion the share of said trust estate held for the benefit of said Ann Jane Stuart during her life goes and of right belongs." Howard F. Landon, of Salisbury, for plain- | this provision does not result in such a detiff. John F. Addis, of New Milford, for defendant Sterry. Leonard J. Nickerson, of Cornwall, for defendant Munn and another. Thomas F. Ryan, of Litchfield, for defendant Eaton. PRENTICE, C. J. (after stating the facts as above). [1] The questions upon which the superior court is called to give its advice arise out of the provisions of paragraph 8 of the will, as affected by the death after the testator of his daughter Ann Jane Stuart leaving a daughter born in lawful wedlock and a grandson, the illegitimate son of an illegitimate daughter of Mrs. Stuart, who died before her mother. In view of the situation thus created, the trustee under the will desires to be informed, and is entitled to be informed, as to the legal rights of parties in interest brought into active conflict by events as they have occurred. Other questions suggested by the provisions of the will, which might by possibility arise in contingencies which have not arisen and may not arise, although perhaps within the comprehensive language of the questions propounded, are prematurely presented for determination. Smith v. Jordan, 77 Conn. 470, 59 Atl. 507. Furthermore, adequate foundation for their determination is not laid in the facts appearing of record. We shall confine our consideration to the field of present interest indicated. struction of the testator's testamentary scheme and purpose that its associated provisions may not stand. The legal can be readily separated from the illegal without doing injustice or defeating the testator's main purpose, and his intent be thus effectuated in so far as the law will permit. White v. Allen, 76 Conn. 185, 189, 56 Atl. 519. Neither does the failure of the gift over "to descendants" invalidate any of the gifts prior in the order of donation. Farnam v. Farnam, 83 Conn. 370, 385, 77 Atl. 70; Cody v. Staples, 80 Conn. 82, 85, 67 Atl. 1; Johnson v. Webber, 65 Conn. 501, 514, 33 Atl. 506. [7] The eighth paragraph as it presents itself for our further consideration, disregarding the unimportant trust provision in the case of minors, thus becomes one in which the testator gave over to the children of each of his two daughters respectively after life estates to the latter the one-quarter share of the trust estate of which such daughter was entitled to receive the income during her life discharged of the trust; the children of each daughter to share and share alike between them, and the property so bestowed to be to the recipients and their heirs. The gifts to the daughters were life estates; the limitations over to their children, remainders which, upon the decease of the testator, vested in point of right in the child or children of each group who were then alive as a class, such class opening to admit afterborn children who, upon their birth, would take a vested interest. Norton v. Mortensen, 88 Conn. 28, 89 Atl. 882; Bartram v. Powell, 88 Conn. 86, 89 Atl. 885. [2] The paragraph in question provides for a disposition of a share of the testator's residuary estate "at or after" the death of each of his two daughters, whether that event should occur before or after his own The estates which thus vested are expressdeath. In so far as this disposition contem-ly made estates of inheritance. Are they, plated the former contingency, the gifts over however, indefeasible, or are they such as were substitutionary; in so far as they con- would be defeated by the happening of a contemplated the latter, they created limita-dition subsequent? If so, the remainder is tions over after a life estate. As all of the testator's four children named in the will survived him, the paragraph in question has only to be considered in the latter aspect. [3] The direction to the trustees which the paragraph contains "to pay to" sundry persons specified portions of the trust estate after the death of a daughter imports a gift. White v. Smith, 87 Conn. 663, 667, 89 Atl. 272; Allen v. Almy, 87 Conn. 517, 523, 89 Atl. 205. [4-6] An attempted gift to "descendants" of children of the testator's daughters living at his death would be void as being contrary to the statute against perpetuities. Tingier v. Chamberlain, 71 Conn. 466, 469, 42 Atl. 718. The provision by which it is directed that the lineal descendants of any deceased child should take "the part of such share as their parent would have taken if alive," and the words a line or two later "and descendants," whereby such descendants are linked with children as donees in remainder, amount to precisely that, and must therefore remain without operative effect. The elimination of 91 A.-13 none the less a vested one. Gray on Perpetuities, § 109. [8, 9] The ninth paragraph of the will provides for the defeat of any interest already vested in children of a child of the testator in the contingency that all of the children of such child of the testator should die before their parent. Doubtless also the provisions of the eighth paragraph in favor of descendants of children, if they had been valid, would have subjected to defeat any interest which had already become vested in point of right in any child of the testator's daughters in the event of its death before the period of distribution arrived. Johnson v. Webber, 65 Conn. 501, 514, 33 Atl. 506; Mitchell v. Mitchell, 73 Conn. 303, 308, 47 Atl. 325. That provision, however, being void, we fail to discover any sufficient reason for holding the vested interest in a child of a daughter of the testator a defeasible one save under the conditions described in the ninth paragraph. Defeasance conditions are not favored. Scovill v. McMahon, 62 Conn. 378, 388, 26 Atl. 479, 21 L. R. A. 58, 36 Am. St. Rep. 350. Neither is an express and positive gift in Our numerous cases touching the various asfee to be cut down by subsequent provisions pects of the question have consistently held less express and positive. Fanning v. Main, | to the doctrine stated and its logical conse77 Conn. 94, 99, 58 Atl. 472. [10] We are thus brought by the illegitimacy of Nora Estelle Eaton to the question whether or not she, as an illegitimate child of Ann Jane Stuart, is to be regarded as the latter's child under the provisions of the will, and as such entitled to be admitted into membership of the class of Ann Jane Stuart's children. At English common law an illegitimate was the child of nobody. This proposition was tenaciously adhered to, and its logical corollaries adopted into the law. Among these corollaries was one that the word "child" or "children," when used in a statute, will, or deed was to be interpreted as including legitimate children only. Another corollary was that out of the relation of an illegitimate to his mother or putative father there could arise no right, duty or obligation. "A bastard was the child of nobody; he was not entitled even to a name. It is, however, gravely asserted by the text-writers that he might gain one by reputation. He did not take his mother's place of settlement, but was settled wherever he chanced to be born. As he was related to nobody, he could have no heirs except of his own body, and so he left no descendants and his property escheated and now by law escheats to the crown." Dickinson's Appeal from Probate, 42 Conn. 491, 500, 19 Am. Rep. . 553. He could not inherit even from his mother. This harsh and inhumane doctrine of the English common law was taken over into the common law of practically all American jurisdictions. Its rigors, however, are such that an appeal has very generally been made to statutes to mitigate some of them. These statutes, being in derogation of the common law, have been strictly construed so that no greater relaxation of the strict common-law rules has been permitted than the statutes plainly authorized. Dickinson's Appeal, 42 Conn. 491, 509, 19 Am. Rep. 553. In most, if not all, of the jurisdictions adopting the common-law rules, statutes have been enacted entitling illegitimates to inherit from the mother. This right of inheritance, however, is founded entirely upon the statute, and does not arise from a recognition of the relation of parent and child between the mother and her offspring. The statutes have not changed or undertaken to change the general attitude of the law upon the subject of the relations of the parties. This state is unique in that neither the fundamental principle of the common law that an illegitimate was the child of nobody nor any of its natural corollaries has ever been ingrafted upon our common law. From the earliest times the proposition that a bastard is the child of nobody has been repudiated, and our law has proceeded upon the directly opposite principle which recognized an illegitimate as the child of his mother. quences with the result that a full recognition has been given to the general rule, distinctly contrary to that prevailing elsewhere, that the relation of mother and child whether legitimate or illegitimate is one from which those rights, obligations, and status arise which ordinarily grow out of the relation of parent and child. A review of our decisions touching the question of both settlement and inheritance, as given in Dickinson's Appeal, supra, need not be here repeated. The strong and emphatic language which our court has repeatedly used upon the subject of a bastard's status is, however, worthy of notice. "The common law of England, which has been urged in this case, is not to be mentioned as an authority in opposition to the positive laws of our own state; and nothing can be more unjust than that the innocent offspring should be punished for the crimes of their parents, by being deprived of their right of inheriting by the mother, when there does not exist amongst men a relation so near and so certain as that of mother and child." Brown v. Dye, 2 Root, 280, 281. born. * * * filius, and derives nothing from his parents; "By the common law, a bastard is nullius for he has no parents, and is settled where this state that a bastard is the child of his But it has been discovered in mother, and capable of inheriting estate, and Hooker, 6 Conn. 35, 36. deriving a settlement from her." Woodstock v. "Upon this subject, our whole system differs entirely from that adopted in Great Britain. The fundamental maxim of the common law, that a bastard is filius nullius, is entirely rejected here; and such a child is here recognized by law as a child of its mother, with the rights and duties of a child." New Haven v. Newtown, 12 Conn. 164, 169. It is by reason of our recognition of the relation of parent and child between a mother and her illegitimate offspring that no statute has been needed in this state to accomplish results which humanity and natural justice dictated, and which could be arrived at elsewhere only through statutory intervention. Our recognition of the relation of child to mother has rendered legislation unnecessary, for instance, to entitle an illegitimate to inherit from his mother, his mother from him, brothers and sisters from each other although one or both are illegitimate offspring and collateral inheritance to proceed through illegitimate lines. The The case of Heath v. White, 5 Conn. 228, is particularly instructive in this connection, especially for the reason assigned in it for sustaining the right of inheritance. question presented was as to the right of an illegitimate to share in the distribution of his mother's real estate. The right of the illegitimate rested solely upon the statute governing the descent of intestate estate and that provision of it which made the property descend to and among "the children and such as legally represent them" of the deceased owner. The question therefore was whether foundation for the corollary that the word "child" or "children" in statute, will, or. deed is to be interpreted as limited to legitimates disappears, and the logical corollary becomes the reverse, so that presumptively the word "child" or "children" in a will embraces offspring legitimate and illegitimate. That is the principle to be applied in the present case, so that, when the testator made his limitation over to the children of his daughters, he will be held to have included all their children unless a different intent is to be gathered from the will read in the light of the surrounding circumstances. the illegitimate was to be regarded as a child | child of nobody. When that proposition is of its mother. In commenting upon the transposed into ours that an illegitimate common-law situation, Chief Justice Hosmer is the child of its mother, then all logical said that it was not the meaning of the word "child" or "children" that at English common law prevented a bastard from inheriting his mother's estate, but that persons of that description were not by that law permitted to succeed to their parent. He further said that undoubtedly in England and in those states which have adopted the English rule the term "child" in reference to succession by inheritance must be understood to mean a legitimate child, but added that "the subject-matter abridged the customary meaning of the word." He then went on to say that the position to be established by the defendant was therefore not relative to the proper meaning of the word "children," "for as to that there existed no possible controversy"; but whether the English law relative to succession by illegitimates is to be recognized as the law of this state and the term "child" and "children" thereby limited in its application to legitimates. The conclusion reached, after a repudiation of the common-law rule, was in favor of adopting the plain meaning of the words of the statute, and giving to them their ordinary signification, comprehending the illegitimate as well as the legitimate offspring of mothers. The same subject had an even fuller consideration in the later case of Dickinson's Appeal, 42 Conn. 491, 19 Am. Rep. 553, where the question was whether the legitimate child of an illegitimate daughter of a sister of the testatrix, who died leaving no nearer blood relative than a cousin, were parties in interest as heirs at law of the testatrix. The general subject of the status of illegitimates was there given exhaustive consideration, the peculiar attitude of our law affirmed and emphasized, and a conclusion in favor of the appellants reached. The significant feature of our cases is that the right of an illegitimate to inherit, his status in the matter of settlement, and the obligations which are recognized as upon him as respects his mother, are derived solely from a recognition of the existence of the relation of parent and child between the mother and her offspring, "agreeably," as our first reported case says, "to the law of nature and reason." Canaan v. Salisbury, Canaan v. Salisbury, 1 Root, 155, 156. [11, 12] The word "children" in our statute of distributions is interpreted to embrace a mother's illegitimate as well as legitimate children for the simple reason that the law regards the former as well as the latter as her children. In a word, the natural corollary of the English rule that the word "child" or "children," when used in a statute, is to be restrained to signify legitimates only, is done away with as it logically must be. That corollary is the logical consequence of the proposition that the illegitimate is the [13] We are unable to discover in this will so read any intent upon the part of the testator to thus restrict the natural meaning of the words he employed. On the contrary, he, at the time his will was executed, presumably had full knowledge of the existence of the illegitimate child, then seven years of age, of his daughter, and of its illegitimacy. His daughter at that time had no other offspring. The provisions of his will were therefore presumably made in contemplation of this situation. Had he not intended that the illegitimate child should share in the fruits of his bounty as a child of his daughter, it is scarcely conceivable that he would have been satisfied to use the unrestricted language that he did, and language which in ordinary speech knows no distinction between legitimates and illegitimates. The superior court is advised that no part of the trust estate in the plaintiff's hands heretofore held by him for the benefit of. Ann Jane Stuart during her life is intestate estate of the testator; that Louis Eaton Sterry is not entitled to receive from the plaintiff any part of said trust estate so held; and that Gertrude Stuart Benson and John F. Addis, as administrator of the estate of Nora Estelle Eaton, deceased, are entitled to receive the whole amount of the trust estate so held in equal shares between them. No costs in this court will be taxed in favor of any of the parties. In this opinion the other Judges concurred, except WHEELER, J., who dissented. WHEELER, J. (dissenting). I am unable to concur in that part of the opinion which holds that the illegitimate son of the illegitimate daughter of Mrs. Stuart was intended by the testator to be included in the devise under the eighth clause of the will of Reuben Eaton, the father of Mrs. Stuart. By the will the testator gave the greater part of his estate to trustees, and, after directing them to pay certain portions of the income to his wife and children, directed the trustees to divide the income of the remainder of |