2. WILLS (8 457*)-CONSTRUCTION-MEANING the niece without issue, the homestead, includOF LANGUAGE.

3. WILLS (§ 608*)-CONSTRUCTION-"ISSUE"- stead as equal tenants on the death of the niece. "HEIRS OF THE BODY."

First codicil:

11. WILLS (§ 587*)-CONSTRUCTION — ESTATES ACQUIRED. "Whereas I, Henry T. Bulkley, of the Testator provided for the payment of money legacies, and gave the residue to his brother town and county of Fairfield, state of Conand sister equally. By a codicil he confirmed necticut, have made my last will and testathe gift to the sister, and gave the use of a ment in writing, bearing date the 23rd day of half of the residue to a niece for life, with October, A. D. 1871, in and by which I have remainder to the heirs of her body, and provided that a half of the estate in excess of $100,000 given, devised and bequeathed, under the in value should go to his wife and the other 8th section and under the last clause of said half to the sister and niece equally. By a sec-will, certain of my estate to my sister, Ann ond codicil he provided that, on the death of the niece without issue, the homestead forming a Eliza, and to my late brother, Augustus: part of her residuary estate for life should go to the children of an uncle, who should participate equally with the legal heirs in the balance. Held that, in determining the residue, there must be deducted from the net amount of the estate its excess above $100,000, and the amount of the money legacies and the balance subject to the life use given to the widow represented

the residue.

[Ed. Note.-For other cases, see Wills, Dec. Dig. § 587.*]

12. WILLS (§ 634*) — ESTATES DEVISED-RE

MAINDERS.

A gift of real estate on the death without issue of a life tenant gives to the remaindermen alienable and transmissible estates. [Ed. Note.-For other cases, see Wills, Dec. Dig. § 634.*]

Case Reserved from Superior Court, Fairfield County; Edwin B. Gager, Judge.

Action by Henry H. Perry, administrator, against Benjamin A. Bulkley and others for the construction of the will of Henry T. Bulkley, deceased. The court found the facts, and reserved the cause for the advice of the Supreme Court of Errors. Superior court advised.

Henry T. Bulkley died October 28, 1881, leaving a widow, but no issue, and an estate, which, after the payment of all debts and charges, amounted, upon the basis of the inventory, to $111,258.23. He left a will, executed in 1871, to which were attached two codicils, one executed in 1876 and the other in 1878. In the original will he provided for his widow by giving to her the life use of his homestead and of $30,000, and by giving to her absolutely $20,000, onehalf of the excess of his estate over $100,000, and all the personal property in or about the homestead. These gifts were expressed to be in lieu of dower. To Miranda B. Merwin, the only child of a deceased sister, he gave $3,000, and to another person $1,500. All the rest, residue, and remainder of his estate he gave to his only brother, Augustus, and his only living sister, Mrs. Francis D. Perry, share and share alike. In the introductory clause of the instrument he expressed his intention of disposing of all of his worldly estate of which he might die possessed, and in the closing paragraph he provided that the will should be void if he should leave a child, and also if his wife should die before him. The two codicils, exclusive of the subscription clauses, are as follows:

"Now, therefore, I do, by this writing, which I hereby declare to be a codicil to my last will and testament, and to be taken as a part thereof, give, devise and bequeath the one-half part of all the rest, residue and remainder of my estate, both real and personal, (excepting as qualified in the last clause of my said will) to my sister, Ann Eliza, wife of Francis D. Perry, to her and her heirs forever.

"To my niece, Miranda B. Merwin, I do give and bequeath the income, use and improvement of the balance, or other one-half, of said rest, residue and remainder of my estate, as aforesaid, during the term of her natural life, and the remainder, after her decease, to the heirs of her body begotten, absolutely and forever.

"I order and direct that the homestead, devised to me by my late brother, Augustus, shall be distributed to my niece, Miranda, at a valuation of five thousand dollars, as a part of said residue, devised and bequeathed to her, to be used and enjoyed by her as

aforesaid.

"And whereas, by the last clause of my said will and testament, I have directed that if the amount of my whole estate, real and personal, shall exceed the sum of one hundred thousand dollars, upon a just valuation and inventory, the one-half of said excess shall go to my wife, Rebekar W., now, therefore, I do, by this writing, confirm said bequest of said one half of said excess to my said wife, Rebekah W., and I do hereby bequeath the remaining one-half of said excess to my said sister, Ann Eliza, and to my niece, Miranda, share and share alike, to them and their heirs absolutely and forever.

"For the purposes of my said last will and testament, and of this codicil thereto, I hereby order and direct that in the settlement of my estate, my own homestead, including the land, about six acres, shall be valued at the sum of twenty thousand dol lars.

"In all other respects and particulars I do hereby ratify and confirm my said last will and testament aforesaid."

Second codicil:

"If my niece, Miranda B. Merwin, dies without issue, I wish the homestead where I live, including house and six acres of land, to go to the children of my uncle, George Bulkley, in equal shares; and they are to

participate equally with my legal heirs in whatever balance there may be over and above the homestead, according to my will. I give my namesake, Henry Bulkley Rodman, one thousand dollars."

At the time of the making of the will the brother, Augustus, the sister, Mrs. Perry, and the niece, Miranda B. Merwin, were the testator's nearest relatives. Augustus died before the first codicil was executed, leaving no descendants. Mrs. Perry, who was born in 1817, died in 1893. She never had children. Miranda B. Merwin, born in 1847, is still living. The heirs of the testator at his decease were Mrs. Perry and Miranda. Miranda has never married, and her next of kin at the time the will was made was and ever since has been her half-brother, who was not related to the testator. George Bulkley, named in the second codicil, had five children, the youngest of whom was born in 1853. All survived the testator. The testator was warmly attached to them, and was much with them. The same was true of Miranda B. Merwin, who until she became 12 years of age was a member of the same family as the testator. The widow survived until 1908.

Elmore S. Banks, for plaintiff. Livingston W. Cleaveland and Harrison Hewitt, for defendant Merwin. Edward L. Clark, Jr., for defendant Guilbert. William B. Boardman, for defendants Bulkley and others.

son for this failure to bestow upon Miranda an absolute estate, such as has been given to Augustus, may be found in the fact that her next of kin was not of the kindred of the testator. But with this we are not concerned. Of that which in the will had been given to Augustus there was left undisposed of the remainder upon the termination of Miranda's life estate, and the testator provided that it should go "to the heirs or issue of her body, begotten, absolutely and forever."

This provision presents a question as to the effect of the attempted gift over. It is clearly void unless the quoted language describing the beneficiaries is to be interpreted as synonymous with children. The ambiguity of the language is apparent; and it is the duty of the court to determine and declare the intent of the testator thereby expressed. In so far as the language has a well-defined and recognized primary meaning, that meaning should be accorded to it unless it appears that the testator used it in a different sense, when it should be given the meaning which he intended should be attached to it, if, thus understood, the provision of the will as applied to the estate would have an intelligible and sensible import. Leake v. Watson, 60 Conn. 498, 500, 21 Atl. 1075; Connecticut T. & S. D. Co., 75 Conn. 683, 692, 55 Atl. 171. The terms "heirs," "heirs of the body," "issue," and "issue of the body" in their primary legal meaning comprehend more than immediate issue. Bartlett v. Sears, 81 Conn. 34, 39, 70 Atl. 33; Ruggles v. Randall, 70 Conn. 44, 48, 38 Atl. 885. Certain of the parties claim that the words "of her body begotten" should be construed as qualifying both the words "heirs" and "issue," and that the use of the word "begotten," in this connection, clearly indicates the intent of the testator to limit the gift over to the immediate issue of Miranda. It is quite apparent that this codicil, as also the second, was not the production of a skilled draftsman, or of a person familiar with legal terms. Care should therefore be taken that too great emphasis should not be placed upon a precise construction of language or phraseology. . Zimmerman v. Mechanics' Savings Bank, 75 Conn. 645, 647, 54 Atl. 1120.

PRENTICE, J. (after stating the facts as above). This will was made subject to its becoming void upon the happening of certain contingencies which never happened. These provisions may therefore be dismissed from consideration. All the questions presented arise out of the language of the two codicils. By the terms of the original will the testator divided "all the rest, residue and remainder" of his estate equally between his only brother, Augustus Bulkley, and his only sister, Mrs. Perry, to them and their heirs forever. It is apparent that the death of this brother childless prompted the execution of the first codicil, and that its chief purpose was to substitute for him as the beneficiary of one of the equal shares of the residuary estate Mi- If the unusual collocation of words which randa B. Merwin and her issue. It contains the testator employed was to be interpreted a provision for the bestowment absolutely of without reference to the second codicil, there the excess of the testator's estate over and might be doubt as to what he sought to exabove $100,000, thereby reducing the amount press thereby. The latter codicil, however, of the possible residue, and makes one or throws a very clear light upon the matter. two incidental directions relating to the set- In the will and first codicil there was no attlement and distribution of the estate; but tempt made to dispose of the remainder in for the rest the testator concerns himself question in the event that Miranda, who was solely with the disposition of the residue. unmarried, should die without "heirs or issue The gift of one-half of it absolutely to Mrs. of her body begotten." This would be apPerry is repeated. New provisions take the parent to any intelligent layman. The second place of those which in the will gave the codicil was, beyond doubt, prompted by a other half to Augustus. This half is no long- desire on the part of the testator to supply er given to any person outright. Miranda this deficiency, and thus to accomplish the B. Merwin, the only child of a deceased sis- result which in the introductory paragraph

in making it. To be sure it contained a leg- cate clearly that the subject-matter of its acy of $1,000. But aside from that its sole provisions, aside from those making the legpurpose manifestly was to supplement the acy of $1,000, is the same as that which was existing provisions of the will and first codi- the subject of the gift over in the first codcil. There was no purpose to change or mod- icil; that is, that portion of the residuum in ify them in so far as they might become op- which Miranda was given a life estate, and erative, or to substitute anything for them. nothing more or less. In speaking of this He apparently appreciated that he had fail- property the testator enumerated the homeed to fully provide against the possibility of stead where he lived, including the house partial intestacy, and sought to incorporate and six acres of land, and, having disposed into his testamentary instrument a provision of that, disposed of whatever balance there which would prevent that result. This pal- might be over and above the homestead. pable fact possesses significance in the con- A question is presented as to what is to be struction of the language of the codicil, as regarded as embraced in this gift of the we shall have occasion to notice later. It homestead, whether the whole or half of it possesses the additional significance that the or what, and also as to the effect which the testator therein used language defining the gift, whatever it is to be construed to incontingency for which he was providing, clude, is to have upon prior provisions, and and that he defined it as the contingency that especially that one of the first codicil which Miranda should die without issue. The in- gives to Mrs. Perry one-half of the residuum. ference is irresistible that he understood The answer is made clear when the purthat he had by his language in the former pose of the codicil, already noticed, is recallcodicil provided for the event of her death ed, and it is borne in mind that the subjectleaving issue. We have, therefore, the tes- matter with which the testator was attempttator's expression of his intended meaning-ing to deal was nothing outside of what had his own definition of his language. This definition makes the phrase in question synonymous with "issue." "Issue," when used as a word of purchase, means primarily and usually descendants of whatever degree, and that is the meaning which will be given to it in a will, if, when thus construed, the provisions of the will, when applied to the estate, have an intelligible and sensible meaning, unless the context shows that the testator employed it in a different sense. Bartlett v. Sears, 81 Conn. 34, 39, 70 Atl. 33. There is nothing in this context to indicate that the testator did not use the word in its ordinary sense. The attempted gift over after the death of Miranda of that portion of the estate of which the life use was given to her, as contained in the first codicil, is therefore void.

It remains to construe the second codicil. It contains a gift of $1,000 to Henry Bulkley Rodman. This gift is not to be construed as conditioned upon Miranda B. Merwin's death without issue, but as a legacy which is to be paid in any event, and its amount is to be taken from the estate in determining the residuum. The other provisions of this codicil are conditioned upon the event stated. That event is not Miranda's death without issue before the testator's, but her death at any time without issue. The purpose which this codicil was intended to serve already and sufficiently pointed out negatives any other conclusion. The gift over in the first codicil was referable to her death leaving issue whenever it should occur. The second codicil was manifestly intended to meet the same contingency of death at any time, but without leaving issue; thus providing for either of the possible situations which might develop at her death.

been given to Miranda for life, and that he had no intent to change or modify the benefactions he had already made or to subtract anything from what he had already given. The first codicil had given one half of the residuary estate to Mrs. Perry absolutely. The other half was given to Miranda for life. The homestead was not specifically assigned to either of these shares. It might, therefore, have been distributed to either, or a part to each. The second codicil, however, clearly indicates the testator's intention to have it set to Miranda's share. Otherwise the codicil would be traveling outside of that share, the testator would no longer be confining himself to providing for a contingency for which provision had not been made previously, the death of Miranda without issue would be made to result in taking from Mrs. Perry what had been given to her absolutely, and the scheme of the will maintained from the beginning, that the residue should be divided into two equal portions and that Mrs. Perry should take one of them absolutely, would be upset. The codicil must, therefore, be construed as embodying an implied direction that this homestead be distributed to the share set out to Miranda's use, and the subject-matter of the gift over described as the homestead, including the house and land, is to be taken as referring to the whole of it. There is no question of the right of the children of George Bulkley to take what was thus given to them, and they took as equal tenants in common.

The codicil next deals with "whatever balance there may be over and above the homestead." This balance is, of course, the balance left of that portion of the residuum of which Miranda had been given the life use after the homestead should be taken out of it. These considerations, growing out of the in- It is provided that the children of George

tator's legal heirs in this balance. The tes- on the facts before us.
tator's legal heirs, in the primary meaning
of that term, were those who, in the absence
of a will, would have been entitled by law to
inherit by descent his real estate. Ruggles
v. Randall, 70 Conn. 44, 48, 38 Atl. 885.
There is nothing to indicate that he used the
term in any other sense. The persons who
are described as being entitled to participate
with the Bulkley children are the testator's
heirs ascertained as of the time of his death,
and not, as claimed by certain of the parties,
his heirs to be ascertained upon the death of
Miranda, the life tenant. The gift over to
them, conditioned upon the death of Miranda
without issue, was therefore a valid one.
Thomas v. Castle, 76 Conn. 447, 451, 56 Atl.
854; Ingersoll v. Ingersoll, 77 Conn. 408, 410,
59 Atl. 413. These heirs were Mrs. Perry and
Miranda. The widow is not to be included.
Ruggles v. Randall, 70 Conn. 44, 48, 38 Atl.
885; Morris v. Bolles, 65 Conn. 45, 58, 31
Atl. 538.

It would appear to

be for her interest to have a merger. Under such conditions the ordinary rule is that a merger results. But to this rule there are exceptions, as where general convenience requires the contrary. Lockwood v. Sturtevant, 6 Conn. 373, 389. In the absence of sufficient practical reasons to the contrary, a merger should be recognized to the limited extent indicated. In addition to such absolute estate as Miranda may have acquired by the merger of estates as aforesaid, she took an absolute estate in the $3,000 legacy contained in the sixth paragraph of the will, and in one-fourth of the excess of the net amount of the testator's estate upon a just valuation and inventory above $100,000. In determining the value of the estate for the purpose of | ascertaining this excess, the homestead in which the testator lived should be valued and inventoried at $20,000. In determining what comprised the rest, residue, and remainder, one half of which was given to Mrs. Perry absolutely, and the other half to Miranda for life with remainder over, there should be deducted from the net amount of the estate its excess above $100,000, ascertained as above, the amount of the several money legacies contained in the will other than said excess, the amount of the legacy to Henry Bulkley Rodman, and the inventory value of the personal property given to the widow by the third paragraph of the will. The balance, subject to such life use of portions thereof as was given to the widow, represents the residuum. The second codicil gave to the five children of George Bulkley alienable and transmissible estates. Johnson v. Edmond, 65 Conn. 492, 499, 33 Atl. 503.

The superior court is advised to render its judgment of advice in conformity with the foregoing conclusions. The other Judges concur.

(105 Me. 113)

The parties who would be entitled to participate in the division of this "balance" having been ascertained, we have next to determine the basis of their participation. The codicil states that the children shall participate equally with the heirs. By this is meant, we think, that the children of George Bulkley, as one group, should take one half between them, and the heirs between them the other half. In the division between the two heirs Mrs. Perry and Miranda would be entitled to share equally. The basis of division, therefore, would be one-half to the children of George Bulkley as equal tenants in common, and one-quarter each to Mrs. Perry and Miranda B. Merwin. It thus appears that Miranda has a vested interest by right of descent in one-fourth of that one-half of the residuary estate which by the first codicil is given to her for her life, subject to her life estate. That interest, however, is a vested one only in the sense that it is capable of alienation, and the subject of succession by inheritance. It is not a vested one in ERSKINE et al. v. WISCASSET & Q. R. CO. the stricter sense that it is certain to come into possession upon the termination of the (Supreme Judicial Court of Maine. preceding life estate. It is made contingent upon her death leaving issue. Johnson v. Edmond, 65 Conn. 492, 499, 33 Atl. 503; Ingersoll v. Ingersoll, 77 Conn. 408, 410, 59 Company filed, in attempted compliance with Atl. 413. In the alternative contingency that statutory requirement, with the clerk of the she should die without leaving issue, she, by county commissioners of Lincoln county, a "loforce of the second codicil, takes as pur- cation" of its proposed railroad through the chaser a vested interest by way of contingent town of Alna. The statute permitted a railroad company to take land for its location not "to remainder in one-fourth of the same one-half exceed four rods in width, unless necessary for of the residuary estate less the homestead. excavation, embankment or materials," and reThe question whether these several estates quired that the "location" filed with the commissioners should show the boundaries of the and interests in this one-fourth of that one- land taken. The "location" filed described onhalf portion of the residuum which is Mir-ly a single line, and the width of the land taken anda's for life, exclusive of the homestead, was not given. Thereafter, upon application by shall be regarded as merged, thereby giving the company, the railroad commissioners, acting her an absolute estate therein is one which ing the "location" filed to be legal and effective, under statute authority, and apparently assumwe ought not to undertake to determine up-authorized the company to excavate through a

et al.

1909.)

Feb. 8,

RAILROAD

1. EMINENT DOMAIN (§ 58*)
RIGHT OF WAY-WIDTH.
In 1894 the Wiscasset & Quebec Railroad