Schwerin v. Ratcliffe

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          FRANCIS T. SCHWERIN, JR., ET AL. v.
              G. JACKSON RATCLIFFE,
                  TRUSTEE, ET AL.
                      (SC 20208)
                      (SC 20209)
             Robinson, C. J., and Palmer, McDonald, D’Auria,
                      Mullins, Kahn and Ecker, Js.

                                   Syllabus

The plaintiffs, potential beneficiaries of two family trusts, sought a judgment
   declaring the proper distribution of assets from those trusts. Each trust
   contained explicit language that, upon the expiration of the trust term,
   the trust principal was to be distributed to the grantor’s issue then living,
   per stirpes. The plaintiffs claimed that, upon the passing of the last
   measuring life, the principal of the trusts should be distributed in six
   equal amounts to the six grandchildren of H, the grantor of one of the
   trusts, and the son of the grantor of the other trust, and that the refer-
   enced distribution will be per stirpes, such that the one-sixth share that
   would have gone to any deceased grandchild of H will instead go to
   the issue of that grandchild. The plaintiffs filed a motion for summary
   judgment, claiming that there was no genuine issue of material fact that
   the trusts grant the principal to the grandchildren of H or their families
   in equal shares. Certain defendants, other potential beneficiaries of the
   trust, also filed motions for summary judgment, claiming that there was
   no genuine issue of material fact with respect to the interpretation of
   the two trusts and that the court should render judgment declaring that,
   at the expiration of the term of those trusts, the principal of the trusts
   should be distributed such that each of the three children of H shall be
   the head of each stirpe. The trial court denied the plaintiffs’ motion
   for summary judgment, granted the defendants’ motions for summary
   judgment, and rendered judgment declaring that, upon the termination
   of the two trusts, the corpus of each trust will be distributed in equal
   shares to the three children of H, with living descendants of each of
   the three children succeeding to the shares of their deceased ancestors.
   The plaintiffs and the defendant C filed separate appeals from the trial
   court’s judgment. On appeal, although the parties generally agreed that
   the grantors of the trusts intended a per stirpes distribution, the plaintiffs
   claimed that the stirpital roots should begin at the level of the grandchil-
   dren, resulting in the trust principal being initially divided into six equal
   shares. C claimed that the stirpital roots should be determined once
   the trust terms expire and that the roots should be at whatever level
   of descendants has members living at the time of expiration. The other
   defendants participating in these appeals claimed that the trial court
   correctly determined that the stirpital roots should be at the level of
   the children, resulting in the trust principal being initially divided into
   three equal shares. Held that the trial court correctly determined that
   the trusts unambiguously provided that the heads of the respective
   stirpes should be the grantors’ children and, accordingly, properly
   granted the defendants’ motion for summary judgment and rendered
   judgment in their favor: Connecticut case law and the Restatement
   (Second) of Property, which provides that, when a gift is made to a
   class described as the ‘‘issue’’ of a designated person, in the absence
   of additional language or circumstances that indicate otherwise, the
   initial division into shares will be on the basis of the number of class
   members, whether alive or deceased, in the first generation below the
   designated person, supported the conclusion that the grantors’ use of
   the term ‘‘issue’’ in the trusts at issue indicated that the grantors intended
   the trust principal to be divided into equal shares on the basis of the
   number of their children, which was the first generation below each
   grantor, and that conclusion was consistent with case law favoring an
   equal distribution of a grantor’s estate among the several branches of
   his or her family, which could be accomplished in the present case only
   if the trust principal is divided with the three children of H serving as
   the stirpital roots, consistent with this state’s intestate statutes (§§ 45a-
   438 (a) and 45a-437), which provide for a per stirpes plan of distribution
   and provide for the stirpital roots to be established at the first generation
   after the decedent, and consistent with the Uniform Probate Code, which
   provides that, if an instrument calls for property to be distributed ‘‘per
   stirpes,’’ the property must be divided into as many equal shares as
   there are surviving children of the designated person and deceased
   children who left surviving descendants; moreover, contrary to the claim
   of the plaintiffs and C that, because the two trusts both provided for
   the principal to be distributed to the grantors’ issue ‘‘then living,’’ mean-
   ing that the grantors intended the initial division of each trust to be to
   the issue living when the trust terminates, the grantors could not have
   intended for the initial division to be at the level of the three children
   of H, who were measuring lives of each trust, as the use of the term
   ‘‘then living’’ did not modify the method of distributing the trust principal
   but merely conditioned the receipt of a distribution from those trusts
   on those issue who survive their expiration; furthermore, although the
   plaintiffs and C relied on Connecticut cases for the proposition that, if
   a testator excludes the children as beneficiaries under the trust and
   directs the gifts to the grandchildren, then the children cannot receive
   the gifts as representatives of their parents, those authorities, which
   involved trust documents that directed the gift to a particular class or
   group of persons, rather than to the more general class of ‘‘issue,’’ were
   not applicable to the present case, as the two trusts at issue do not
   name a particular class to receive the gifts.
    Argued September 17, 2019—officially released March 30, 2020*

                            Procedural History

   Action for a judgment declaring the proper method
for distributing the principal of certain trusts, brought
to the Superior Court in the judicial district of Hartford
and transferred to the Complex Litigation Docket, where
Bessemer Trust Company, N.A., was substituted for the
named defendant et al.; thereafter, the court, Sheridan,
J., appointed three guardians ad litem to represent the
interests of various individuals; subsequently, Tadhg
William Campion was added as a defendant; thereafter,
the court denied the plaintiffs’ motion for summary judg-
ment, granted the separate motions for summary judg-
ment filed by the defendant William Hale Hubbell et
al. and by the defendant Harvey Hubbell V et al., and
rendered judgment for the defendants, from which the
plaintiffs and Tadhg William Campion filed separate
appeals. Affirmed.
  Brian O’Donnell, with whom were John R. Ivimey
and Mary Mintel Miller, for the appellants in Docket
No. SC 20208 and the appellees in Docket No. SC
20209 (plaintiffs).
   Linda L. Morkan, with whom was Andrew A. DePeau,
for the appellee in Docket No. SC 20208 and the appel-
lant in Docket No. SC 20209 (defendant Tadhg Wil-
liam Campion).
  Jonathan J. Meter, for the appellees in Docket Nos.
SC 20208 and SC 20209 (defendant Harvey Hubbell V
et al.).
  Steven M. Wise, pro hac vice, with whom was David
B. Zabel, for the appellees in Docket Nos. SC 20208 and
SC 20209 (defendant William Hale Hubbell et al.).
  John A. Farnsworth, with whom was Karen Yates,
for the appellee in Docket Nos. SC 20208 and SC 20209
(substitute defendant Bessemer Trust Company, N.A.).
  Robert B. Flynn, for the appellee in Docket Nos. SC
20208 and SC 20209 (Michael D. O’Connell, guardian
ad litem for the minor, unborn and unascertained descen-
dants of the named plaintiff).
  James K. Robertson, Jr., self-represented, with whom
was Brian Henebry, for the appellee in Docket Nos.
SC 20208 and SC 20209 (James K. Robertson, Jr., guard-
ian ad litem for the minor, unborn and unascertained
descendants of the defendant Harvey Hubbell V et al.)
                          Opinion

   MULLINS, J. The primary issue in these appeals is
whether the trial court properly determined the correct
generation to serve as the root for the per stirpes distri-
bution of two family trusts. The appeals arise from an
action filed by the plaintiffs, Francis T. Schwerin, Jr.,
and Brenda Hubbell Schwerin, seeking a declaratory
judgment regarding the proper distribution of assets
from the two family trusts. Each trust contains language
that, upon the expiration of the trust term, the trust
principal is to be distributed to the grantor’s issue then
living, per stirpes.1 The plaintiffs are potential benefici-
aries of these trusts and brought this action against the
defendants,2 who are the trustees of the trusts and other
potential beneficiaries. The trial court rendered sum-
mary judgment for the defendants, and the plaintiffs
and the defendant Tadhg William Campion (Campion)
filed separate appeals.3
   On appeal, the plaintiffs assert that the trial court
incorrectly concluded that the language of the trust
agreements treats the children of the grantors as the
heads of the respective stirpes for purposes of distribu-
tion of the trust principal. The plaintiffs further assert
that the trust agreement provides that the heads of the
respective stirpes should, instead, be at the level of
the grandchildren. Contrary to the plaintiffs’ position,
Campion asserts in his appeal that the language of the
trusts establishes that the heads of the respective stir pes
should be at the highest generational level with a mem-
ber living at the time the trusts terminate. In response, the
other defendants participating in the appeals assert that
the trial court correctly determined that the trust instru-
ments unambiguously provide that the heads of the respec-
tive stirpes should be the grantors’ children. We agree with
those defendants and, accordingly, affirm the judgment of
the trial court.
   The record reveals the following undisputed facts and
procedural history. This dispute revolves around the
proper interpretation of two inter vivos trusts (Hubbell
Family Trusts). One trust was created by Harvey Hub-
bell III on August 23, 1957, and was amended on October
9, 1963 (Hubbell Trust). The other trust was created by
the mother of Harvey Hubbell III, Louie E. Roche, on
September 2, 1957 (Roche Trust).
   The Hubbell Trust provides that it will expire upon
‘‘the death of the last survivor of the grantor [Harvey
Hubbell III], his wife Virginia W. Hubbell, his children
Harvey Hubbell, Jr.,4 William [Ham] Hubbell and Eliza-
beth H. Schwerin, and his grandchildren Lisa Lorraine
Hubbell5 and Francis Timothy Schwerin6 . . . .’’ (Foot-
notes added.)
   The Roche Trust provides that it will expire upon
‘‘the death of the last survivor of the grantor [Roche],
her son Harvey Hubbell,7 her grandchildren Harvey
Hubbell, Jr., William [Ham] Hubbell and Elizabeth H.
Schwerin, and her great-grandchildren Lisa [Lugovich]
and Francis Timothy Schwerin . . . .’’ (Footnotes
added.)
   Thus, the measuring lives for the Hubbell Family
Trusts are as follows: Harvey Hubbell III; Roche, the
mother of Harvey Hubbell III; Virginia W. Hubbell, the
wife of Harvey Hubbell III; Harvey Hubbell IV, a son of
Harvey Hubbell III; the defendant William Ham Hubbell,
a son of Harvey Hubbell III; the defendant Elizabeth H.
Schwerin, the daughter of Harvey Hubbell III; and the
plaintiff Francis T. Schwerin, Jr., and the defendant Lisa
Lugovich, the two grandchildren of Harvey Hubbell III
who were alive at the time those trusts were created.8
Accordingly, the Hubbell Family Trusts will expire upon
the death of the last survivor of the measuring lives.
  Five of the individuals who are the measuring lives
are deceased.9 The plaintiff Francis T. Schwerin, Jr., and
the defendants Elizabeth H. Schwerin and Lisa Lugovich
are still alive. It is undisputed that the Hubbell Family
Trusts will expire upon the death of the last survivor
of those three individuals.
  The trust language at issue in these appeals is the lan-
guage that addresses the distribution of the principal of
the Hubbell Family Trusts upon expiration. The Hubbell
Trust provides in relevant part: ‘‘Upon the expiration
of the trust term the trustees, subject to the provisions
hereinafter contained, shall convey and deliver all prop-
erty then belonging to the principal of the trust to grant-
or’s issue then living, per stirpes.’’
   The Roche Trust provides in relevant part: ‘‘Upon the
expiration of the trust term the trustees shall convey
and deliver all property then belonging to the trust,
including the principal and any undistributed income
thereof, absolutely to the issue of the grantor then living,
per stirpes, or in default of such issue to the persons
who would be entitled to take the same in accordance
with the laws of the [s]tate of Connecticut then in force
if the grantor had died at the expiration of the trust
term, intestate, and a resident of the [s]tate of Connecti-
cut, and the absolute owner of said property.’’
   The plaintiffs brought this declaratory judgment
action in the Superior Court, asking the court to resolve
the conflict over the proper method for distribution
of the trust principal when the Hubbell Family Trusts
expire. Specifically, the plaintiffs asked the trial court
to declare that, ‘‘upon the passing of the last measur-
ing life—i.e., the passing of the last of [Elizabeth H.
Schwerin, Francis T. Schwerin, Jr., and Lisa Lugovich]—
the principal of the Hubbell Family Trusts will be dis-
tributed in six equal amounts to the six grandchildren
of Harvey Hubbell III, and the referenced distribution
will be per stirpes, such that the one-sixth share that
would have gone to any deceased grandchild of Harvey
Hubbell III will instead go to the issue of each such
deceased grandchild.’’ The plaintiffs filed a motion for
summary judgment, alleging that there was ‘‘no genuine
issue of material fact that [the Hubbell Family Trusts]
grant principal to . . . [the grandchildren of Harvey
Hubbell III] or their families in equal shares.’’
   The defendants William Hale Hubbell and William
Hale Lyon Alarcon Hubbell (William Hale Hubbell
defendants) also filed a motion for summary judgment,
asserting that there was no genuine issue of material
fact with respect to the interpretation of the Hubbell
Family Trusts. They further asserted that the court
should render judgment declaring that, at the expiration
of the term of the Hubbell Family Trusts, the principal
of those trusts should be distributed such that each
child of Harvey Hubbell III shall be the head of each
stirpe.
   The defendants Harvey Hubbell V, Lisa Lugovich,
Richard John Lugovich, Stephen Michael Lugovich and
John Daniel Lugovich (Lugovich defendants) also filed
a motion for summary judgment, claiming that there
was no genuine issue of material fact as to any allega-
tions raised in the complaint. They also claimed that,
‘‘upon termination of the Hubbell Family Trusts, the
corpus of each trust should be divided equally into three
shares, which are representative of the three children
of Harvey Hubbell III, with living descendants of each
of the three children succeeding to the shares of their
deceased ancestors . . . .’’
  The trial court denied the plaintiffs’ motion for sum-
mary judgment and granted the motions for summary
judgment filed by the William Hale Hubbell defendants
and the Lugovich defendants. The trial court then ren-
dered judgment in favor of the defendants and declared
as follows: ‘‘Upon the termination of the August 23,
1957 [Hubbell Trust], as amended on October 9, 1963,
and the September 2, 1957 [Roche Trust], by the passing
of [the] last measuring life under said trusts, the corpus
of each trust will be distributed in equal shares to the
three children of Harvey Hubbell III, with living descen-
dants of each of the three children succeeding to the
shares of their deceased ancestors.’’ These appeals
followed.
   We begin by setting forth the standard of review that
governs our review of the claims on appeal. ‘‘The stan-
dard of review of a trial court’s decision granting sum-
mary judgment is well established. Practice Book § 17-
49 provides that summary judgment shall be rendered
forthwith if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . Our review of the
trial court’s decision to grant the defendant’s motion
for summary judgment is plenary. . . . On appeal, we
must determine whether the legal conclusions reached
by the trial court are legally and logically correct and
whether they find support in the facts set out in the
memorandum of decision of the trial court.’’ (Internal
quotation marks omitted.) King v. Volvo Excavators
AB, 333 Conn. 283, 290–91, 215 A.3d 149 (2019).
   The resolution of these appeals requires us to deter-
mine the proper interpretation of substantially similar
language in each of the Hubbell Family Trusts. Specifi-
cally, the Roche Trust provides that the trust principal
shall be distributed ‘‘to the issue of the grantor then
living, per stirpes . . . .’’ The Hubbell Trust provides
that the trust principal shall be distributed ‘‘to grantor’s
issue then living, per stirpes.’’ All of the parties are in
agreement that those two trusts should be interpreted
in the same manner. The dispute involves the issue of
which generation should serve as the stirpital roots.10
   ‘‘[W]here the manifestation of the settlor’s intention
is integrated in a writing, that is, if a written instrument
is adopted by the settlor as the complete expression of
the settlor’s intention, extrinsic evidence is not admis-
sible to contradict or vary the terms of the instrument
in the absence of fraud, duress, undue influence, mis-
take, or other ground for reformation or rescission. . . .
If a [trust instrument] is unambiguous within its four
corners, intent of the parties is a question of law requir-
ing plenary review. . . . Where the language of the
[trust instrument] is clear and unambiguous, the [instru-
ment] is to be given effect according to its terms. A
court will not torture words to import ambiguity where
the ordinary meaning leaves no room for ambiguity
. . . . Similarly, any ambiguity in a [trust instrument]
must emanate from the language used . . . rather than
from one party’s subjective perception of the terms. . . .
   ‘‘If, however, the trust instrument is an incomplete
expression of the settlor’s intention or if the meaning of
the writing is ambiguous or otherwise uncertain, evidence
of the circumstances and other indications of the trans-
feror’s intent are admissible to complete the terms of
the writing or to clarify or ascertain its meaning . . . .’’
(Citations omitted; internal quotation marks omitted.)
Palozie v. Palozie, 283 Conn. 538, 547–48, 927 A.2d 903
(2007). Furthermore, ‘‘[i]t is well settled that in the con-
struction of a testamentary trust, the expressed intent of
the testator must control. This intent is to be determined
from reading the instrument as a whole in the light of
the circumstances surrounding the testator when the
instrument was executed, including the condition of his
estate, his relations to his family and beneficiaries and
their situation and condition.’’ (Internal quotation marks
omitted.) Pikula v. Dept. of Social Services, 321 Conn.
259, 268, 138 A.3d 212 (2016).
  ‘‘The cardinal rule of testamentary construction is the
ascertainment and effectuation of the intent of the testa-
tor, if that [is] possible. If this intent, when discovered,
has been adequately expressed and is not contrary to
some positive rule of law, it will be carried out. . . . The
most inflexible rule of testamentary construction and
one universally recognized is that the intention of the
testator should govern the construction, and this inten-
tion is to be sought in the language used by the testator
in the light of the circumstances surrounding and known
to him at the time the will was executed. . . . In seek-
ing the testator’s testamentary intent, the court looks
first to the will itself . . . . It studies the will as an
entirety. The quest is to determine the meaning of what
the [testator] said and not to speculate upon what [he]
meant to say . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) Hartford National Bank & Trust
Co. v. Thrall, 184 Conn. 497, 502, 440 A.2d 200 (1981).
  With these principles in mind, we return to the lan-
guage of the Hubbell Family Trusts. The Roche Trust
requires the principal to be distributed ‘‘to the issue of
the grantor then living, per stirpes . . . .’’ The Hubbell
Trust provides that the trust principal shall be distrib-
uted ‘‘to grantor’s issue then living, per stirpes.’’
   ‘‘Per stirpes means literally by roots or stock or by
representation. Black’s Law Dictionary (5th Ed. [1979])
[p. 1030]. Under a stirpital distribution, each deceased
member of one generation is represented by his descen-
dants of the next succeeding generation. When a stirpi-
tal distribution is directed, it is necessary to determine
who are the heads of the respective stirpes.’’ Hartford
National Bank & Trust Co. v. Thrall, supra, 184 Conn.
505.
   It is well established ‘‘that, in the absence of words
indicating a contrary intent, a will is to be interpreted
as intending to distribute an estate per stirpes, and in
accordance with the [Connecticut] statute of distribu-
tions.’’ Close v. Benham, 97 Conn. 102, 107, 115 A. 626
(1921). ‘‘[T]he per stirpes . . . rule has for two centu-
ries commended itself to the judgment of the commu-
nity as one of justice, and has been and is the rule
applied by the law in [the] case of intestate estate. . . .
The statute of distribution governs in all cases where
there is no will; and where there is one, and the testa-
tor’s intention is in doubt, the statute is a safe guide.’’
(Citation omitted; internal quotation marks omitted.)
Heath v. Bancroft, 49 Conn. 220, 223–24 (1881).
   Indeed, ‘‘we have held in numerous cases that, in the
absence of any direction to the contrary, the per stirpes
rule of distribution should be adopted. . . . In most of
these there was some implication of an intent to make
a per stirpes distribution, though no explicit direction
to that effect, and in some the unequal consequences
of a per capita distribution were pointed out as one of
the considerations in favor of adopting the per stirpes
rule.’’ (Citation omitted.) Mooney v. Tolles, 111 Conn.
1, 12–13, 149 A. 515 (1930). In the present case, not
only do we presume a per stirpes method of distribution
in the absence of any explicit language to the contrary,
but the language in the Hubbell Family Trusts explicitly
provides for distribution on a per stirpes basis.
   That does not end our inquiry, however. In the present
case, although the parties generally agree that the testa-
tors intended a per stirpes distribution, they dispute
what that means under the circumstances. Specifically,
the plaintiffs assert that the stirpital roots should begin
at the level of the grandchildren, resulting in the trust
principal being initially divided into six equal shares.
Campion asserts that the stirpital roots should be deter-
mined once the Hubbell Family Trusts expire and that
the roots should be at whatever level of descendants
has members living at the time of expiration. The other
defendants participating in the appeals assert that the
trial court correctly determined that the stirpital roots
should be at the level of the children, resulting in the
trust principal being initially divided into three equal
shares.
    Having concluded that the Hubbell Family Trusts
require per stirpes distribution, we turn back to the
language of those trusts to determine the proper genera-
tional level at which to locate the stirpital roots. Specifi-
cally, we consider what the grantors meant by the use
of the term ‘‘issue,’’ as used in the operative language
of the Hubbell Family Trusts. ‘‘ ‘In construing the word
‘‘issue,’’ we have often noted that, in its primary mean-
ing, ‘‘issue’’ connotes lineal relationship by blood.’ . . .
The word ‘will be so construed unless it clearly appears
that [it was] used in a more extended sense.’ ’’ (Citation
omitted.) Connecticut Bank & Trust Co. v. Coffin, 212
Conn. 678, 685, 563 A.2d 1323 (1989). This court has also
recognized that ‘‘antilapse statutes generally obtaining
in the United States . . . allow a construction of ‘issue’
in a manner permitting a distribution per capita among
the first generation with a per stirpes representation in
the next generation . . . .’’ Warren v. First New Haven
National Bank, 150 Conn. 120, 124–25, 186 A.2d 794
(1962). In other words, the initial division is to be made
in as many shares as there are members of the first genera-
tion (per capita), and each deceased member of one gener-
ation is represented by his or her descendants of the next
succeeding generation (per stirpes).
   The Restatement (Second) of Property is consistent
with our case law. It explains as follows: ‘‘If a gift is made
to a class described as the ‘issue’ or ‘descendants’ of a
designated person, or by a similar multigenerational class
gift term, in the absence of additional language or cir-
cumstances that indicate otherwise . . . (3) the initial
division into shares will be on the basis of the number
of class members, whether alive or deceased, in the
first generation below the designated person.’’ 3 Restate-
ment (Second), Property, Donative Transfers § 28.2, p.
254 (1988). Applying this principle to the language in
the Hubbell Family Trusts supports our conclusion that
the grantors’ use of the term ‘‘issue’’ indicates that the
grantors intended the trust principal to be divided into
equal shares on the basis of the number of their children,
as that was the first generation below each grantor.11
   Comment (b) to § 28.2 of the Restatement (Second)
further explains: ‘‘If a gift is made to the ‘issue’ or ‘descen-
dants’ of a designated person, in the absence of addi-
tional language or circumstances that indicate other-
wise, the initial division of the subject matter is made
into as many shares as there are issue, whether living
or not, of the designated person in the first degree of
relationship to the designated person. Each issue in the
first degree of relationship who survives to the date of
distribution takes one share of the subject matter of
the gift to the exclusion of any of such first degree issue’s
descendants. The share of an issue of the first degree who
does not survive to the date of distribution is divided
into as many shares as there are descendants, whether
living or not, of that deceased issue who are in the sec-
ond degree of relationship to the person whose issue
are designated. Such issue in the second degree of rela-
tionship [who] survive to the date of distribution each
take one share resulting from such division to the exclu-
sion of their respective descendants. The share of an
issue of the second degree who does not survive to the
date of distribution is divided into as many shares as
there are descendants, whether living or not, in the third
degree of relationship to the designated ancestor who
are also descendants of the deceased second degree
descendant, etc. This is referred to as a per stirpes plan
of distribution.’’ Id., § 28.2, comment (b), p. 255. In the
present case, as we explained previously in this opinion,
the testators explicitly provided for a per stirpes plan
of distribution, and interpreting ‘‘issue’’ as requiring that
division to begin with their children is consistent with
that express instruction.
   We are also guided by the fact that this court has
explained that ‘‘[j]urisdictions in the United States . . .
have tended toward a construction in favor of a per
stirpes division and have construed ‘issue,’ when its
meaning is unrestricted by the context, as including all
lineal descendants in the order in which they would be
entitled, at the death of the ancestor, to take his prop-
erty under the law of intestate succession.’’ Warren v.
First New Haven National Bank, supra, 150 Conn. 125.
Indeed, we have stated that, ‘‘[w]hen a conveyance cre-
ates a class gift by a limitation in favor of a group
described as the issue of B . . . then, unless a contrary
intent of the conveyor is found from additional language
or circumstances, distribution is made to such members
of the class as would take, and in such shares as they
would receive, under the applicable law of intestate suc-
cession if B had died intestate on the date of the final
ascertainment of the membership in the class, owning
the subject matter of the class gift.’’ (Internal quotation
marks omitted.) Id., 126–27, quoting 3 Restatement,
Property § 303 (1), p. 1655 (1940). Therefore, in the
present case, the testators’ unqualified use of the term
‘‘issue’’ supports the application of a per stirpes plan of
distribution with the stirpital roots at the generation of
their children.
   In this case, as we previously have noted, the trust
instruments explicitly call for a distribution on a per stir-
pes basis without any other explicit direction. Thus, our
resolution of this case requires that we consider the
rationale supporting a per stirpes method of distribution
because that rationale informs the proper generational
level at which to locate the stirpital roots. As this court
has explained, when the testator has not expressly pro-
vided otherwise, our law favors an equal distribution
of the testator’s estate ‘‘among the several branches of
his family . . . .’’ (Emphasis added.) Stamford Trust
Co. v. Lockwood, 98 Conn. 337, 347, 119 A. 218 (1922),
overruled in part on other grounds by Connecticut
Bank & Trust Co. v. Coffin, 212 Conn. 678, 693, 563 A.2d
1323 (1989). In the present case, each child represents
a branch of the grantor’s family. Specifically, the grantor
Harvey Hubbell III had three children, namely, William
Ham Hubbell, Harvey Hubbell IV, and Elizabeth H.
Schwerin. Therefore, there are three branches of that
grantor’s family. William Ham Hubbell had one child,
Harvey Hubbell IV had two children and Elizabeth H.
Schwerin had three children. Thus, if the trust principal
is divided with the grandchildren serving as the stirpital
roots or with the stirpital roots anywhere other than at
the level of the children, there will be an unequal distri-
bution of the estate of Harvey Hubbell III among the three
branches of his family. That is, the branch of the family
representing Elizabeth H. Schwerin would receive the
most because she had three children, the branch repre-
senting Harvey Hubbell IV would receive the second
most because he had two children and the branch repre-
senting William Ham Hubbell would receive the least
because he had only one child. As this court concluded
in Stamford Trust Co. ‘‘[t]hat a per capita distribution
among issue of every degree would . . . result in an
unequal distribution of the testator’s estate among the
several branches of his family, is apparent. On the other
hand, a distribution per stirpes among the issue of what-
ever degree, the issue of each life tenant taking as a
class by right of representation, satisfies not only the
language of the will and the indicated intent of the
testator, but also the policy of our law.’’ Stamford Trust
Co. v. Lockwood, supra, 347.
  Such a distribution is also consistent with Connecti-
cut’s intestate statutes, which provide for a per stirpes
plan of distribution and provide for the stirpital roots
to be established at the first generation after the dece-
dent. See General Statutes § 45a-438 (a)12 (‘‘[a]fter distri-
bution has been made of the intestate estate to the sur-
viving spouse in accordance with section 45a-437, the
residue of the real and personal estate shall be distrib-
uted equally, according to its value at the time of distri-
bution, among the children, including children born
after the death of the decedent . . . and the legal repre-
sentatives of any of them who may be dead’’); see also
General Statutes § 45a-439.13 Therefore, the law of intes-
tate succession in Connecticut supports an interpreta-
tion of the language of the Hubbell Family Trusts that
provides for an initial division into three equal shares
among the three children of Harvey Hubbell III, which
is then to be distributed on a per stirpes basis.
   Our interpretation of the Hubbell Family Trusts is
also consistent with the Uniform Probate Code,14 which
provides in relevant part: ‘‘If a governing instrument
calls for property to be distributed ‘per stirpes,’ the prop-
erty is divided into as many equal shares as there are
(i) surviving children of the designated ancestor and
(ii) deceased children who left surviving descendants.
Each surviving child, if any, is allocated one share. The
share of each deceased child with surviving descen-
dants is divided in the same manner, with subdivision
repeating at each succeeding generation until the prop-
erty is fully allocated among surviving descendants.’’
Unif. Probate Code § 2-709 (c) (amended 1993), 8 U.L.A.
316 (2013).
   The plaintiffs and Campion assert that the trial court
incorrectly concluded that the grantors intended for the
stirpital roots to be established at the generational level
of the children because the Hubbell Family Trusts both
provide for the principal to be distributed to the grant-
ors’ issue ‘‘then living . . . .’’ Specifically, Campion
asserts that the phrase ‘‘then living’’ is used to modify
the term ‘‘issue,’’ meaning that the grantors intended
the initial division of each trust to be to the issue living
at the termination of the trust, and, because all three
children of Harvey Hubbell III are measuring lives of
each trust, the grantors could not have intended for the
initial division to be at the level of the children. We
disagree.
    The use of the term ‘‘then living’’ does not alter the tes-
tators’ intention for per stirpes distribution of the trust
principal. Instead, the term ‘‘then living’’ is used to iden-
tify those who receive a distribution under the Hubbell
Family Trusts. In other words, the use of the term ‘‘then
living’’ does not modify the method of distributing the
trust principal but merely conditions the receipt of a
distribution from those trusts on surviving their expira-
tion. See 3 Restatement (Second), supra, § 28.2, p. 254
(‘‘[i]f a gift is made to a class described as the ‘issue’
or ‘descendants’ of a designated person, or by a similar
multigenerational class gift term, in the absence of addi-
tional language or circumstances that indicate other-
wise, (1) [a] class member must survive to the date of dis-
tribution in order to share in the gift; and (2) such class
member in order to share in the gift must have no living
ancestor who is a class member’’); see also, e.g., Travis
v. Wolcottville School Society, 113 Conn. 618, 631–32,
155 A. 904 (1931) (language in will bequeathing gift
to beneficiary ‘‘ ‘if living’ ’’ at time of death of testator’s
wife ‘‘conditioned the gift upon the survival of the bene-
ficiary after the death of the testator’s wife’’). The com-
mentary to the Restatement (Second) explains: ‘‘If a gift
is made to the ‘issue’ or ‘descendants’ of a designated
person, in the absence of additional language or circum-
stances that indicate otherwise, the initial division of
the subject matter is made into as many shares as there
are issue, whether living or not, of the designated per-
son in the first degree of relationship to the designated
person.’’ (Emphasis added.) 3 Restatement (Second),
supra, § 28.2, comment (b), p. 255.
  The appellate courts of this state have not addressed
the precise impact that the phrase ‘‘then living’’ has on
per stirpes distribution, but we find a Massachusetts
Appeals Court case instructive. In Bank of New England,
N.A. v. McKennan, 19 Mass. App. 686, 477 N.E.2d 170,
review denied, 395 Mass. 1102, 481 N.E.2d 197 (1985),
the court addressed ‘‘whether the phrase ‘according to
the stocks’ in [a trust], when applied to the distribution
of the trust principal to the testator’s ‘issue then living,’
calls for the stocks to be the three children of the
testator . . . or to be the nine grandchildren of the
testator . . . .’’ Id., 688.
   The court reasoned that, because the testator had
included the term ‘‘ ‘according to the stocks,’ ’’ which
it interpreted to mean per stirpes, the testator had
intended his children to be the heads of the respective
stirpes. Id., 688 n.1, 689–91. Accordingly, the court con-
cluded that ‘‘the testator provided for an income distri-
bution by which the grandchildren took only propor-
tional shares of what their individual parents had, rather
than equal shares.’’ Id., 690. Similar to the Hubbell Fam-
ily Trusts in the present case, the trust at issue in Bank
of New England, N.A., provided for the children to be
measuring lives. See id., 687. Therefore, like the children
in the present case, the children in Bank of New England,
N.A., could never receive gifts under the trust but were
still the stirpital roots for the per stirpes division. See
id., 691.
    It is important to note that the Massachusetts intes-
tate statute would not have provided for a per stirpes
distribution but would have provided, instead, that each
grandchild take a share of the trust principal per capita.
See Mass. Ann. Laws c. 190, §§ 2 through 4 (Law. Co-
op. 1981).15 Nevertheless, the Massachusetts Appeals
Court concluded that the testator’s use of the phrase
‘‘ ‘my issue living on the quarterly payment days . . .
according to the stocks’ ’’ was sufficient to rebut the
presumption of the state’s intestate statute and provide
for per stirpes distribution of the trust principal with
the children of the testator as the stirpital roots. Bank
of New England, N.A. v. McKennan, supra, 19 Mass.
App. 688–90.
   In reaching its conclusion, the Massachusetts Appeals
Court also explained that its determination that the
children should serve as the stirpital roots is consistent
with other language in the trust because the terms of
the trust did not single out the grandchildren of the tes-
tator. See id., 690–91. Specifically, that court explained:
‘‘[T]he will as a whole manifests no intention to single
out the testator’s grandchildren as deserving of equal
or special treatment. Indeed, [a]rticle [s]even [of the
will] does not even mention the grandchildren individu-
ally or as a class. Rather, it expresses itself solely in
terms of the testator’s ‘issue,’ who are to receive both
the income of the trust while at least one of the testator’s
children is alive and the principal of the trust upon the
death of the last child. Nor is the term ‘issue’ restricted
to grandchildren. To the contrary, by definition in the
will, the term includes both ‘children’ and all ‘lineal
descendants to the remotest degree.’ In view of the tes-
tator’s omission of any express reference to his grand-
children, which would have been easy to provide had
it been desired, it can be inferred that the testator was
concerned, not with providing specifically for them, but
for his ‘issue’ as a whole, according to the stocks from
which they came, i.e., his children.’’ (Footnote omitted.)
Id.
   Because the language of the will at issue in Bank of
New England, N.A., is substantially similar to the lan-
guage of the Hubbell Family Trusts, we find the reason-
ing of that case persuasive. Specifically, like the will at
issue in that case, the Hubbell Family Trusts do not
single out the testators’ grandchildren as the beneficiar-
ies individually, instead providing for the division of
the trust principal among the testators’ ‘‘issue’’ as a whole.16
It is noteworthy that the Massachusetts Appeals Court
held as it did in Bank of New England, N.A., because
its conclusion was contrary to the intestate statute in
Massachusetts, which provided for a per capita distri-
bution. See Mass. Ann. Laws c. 190, §§ 2 through 4 (Law.
Co-op. 1981). The reasoning of the Massachusetts Appeals
Court in Bank of New England, N.A., is even more persua-
sive in the present case because our conclusion regard-
ing the proper method for distributing the principal of
the Hubbell Family Trusts is consistent with the intes-
tate statutes of this state, which would require the chil-
dren to be the stirpital roots. See General Statutes §§ 45a-
438 (a) and 45a-439.
  The plaintiffs and Campion also assert that constru-
ing the Hubbell Family Trusts such that the children
are the heads of the respective stirpes is inconsistent
with the terms of those trusts as a whole because they
provide for the children and the two grandchildren of
Harvey Hubbell III to be measuring lives, and, therefore,
the children can never be beneficiaries under the Hub-
bell Family Trusts. In support of their position, the
plaintiffs and Campion point to a number of cases from
this jurisdiction for the proposition that, if a testator
excludes the children as beneficiaries under the trust
and directs the gifts to the grandchildren, then the chil-
dren cannot receive the gifts as representatives of their
parents. We find these cases inapposite.
   In the cases on which the plaintiffs and Campion rely,
the trust document directs the gift to a particular class
or group of persons, rather than to the more general
class of ‘‘issue.’’ See, e.g., Hartford National Bank &
Trust Co. v. Thrall, supra, 184 Conn. 499 n.1 (‘‘[u]pon
the death of my said children and of my said grandchild
said trust shall terminate, and I do then give, devise
and bequeath said the rest, residue and remainder of
my estate to their children, if any they have, as a class,
to be divided among them per stirpes, share and share
alike, to them and to their heirs forever’’ (internal quota-
tion marks omitted)); Hartford-Connecticut Trust Co.
v. Beach, 100 Conn. 351, 356–57, 123 A. 921 (1924) (‘‘the
remaining principal of the general share or parcel at
the beginning of this [s]eventh article mentioned shall
be distributed equally to all my grandchildren and the
issue of such deceased grandchildren as may be born
during my lifetime, if any, they to take per stirpes and
not per capita’’ (internal quotation marks omitted)).
These cases are inapplicable here because the Hubbell
Family Trusts do not name a particular class to receive
the gifts.
  Similarly, the plaintiffs and Campion rely on § 301 of
the Restatement of Property to support the position
that the stirpital roots should be at the first generational
level with members still living when the trust termi-
nates. We disagree.
   Section 301 of the Restatement of Property applies
‘‘[w]hen a conveyance creates a class gift by a limitation
in favor of a group described as ‘B and his children,’
or as ‘B and the children of C,’ or as ‘children of B
and children of C,’ or by other words similarly limiting
property to one or more named persons plus one or
more described groups, or to two or more described
groups, and the membership in such class has been
ascertained in accordance with the rules stated in
§§ 285–299 . . . .’’ 3 Restatement, supra, § 301, pp.
1640–41. As we have explained, the language in the
trusts in the present case makes a gift to the grantors’
issue, generally, rather than to a more specific, particu-
lar class of people. Therefore, we conclude that § 303
of the Restatement of Property is applicable to the lan-
guage in the Hubbell Family Trusts because, as pre-
viously noted, that section applies ‘‘[w]hen a convey-
ance creates a class gift by a limitation in favor of a
group described as the ‘issue of B,’ or as the ‘descen-
dants of B,’ and the membership in such class has been
ascertained in accordance with the rules stated in
§§ 292 and 294–299 . . . .’’ 3 id., § 303 (1), p. 1655.
  Although we agree with the plaintiffs and Campion
that, under the terms of the Hubbell Family Trusts,
the children and some of the grandchildren of Harvey
Hubbell III who are named as measuring lives can never
be beneficiaries under those trusts, that fact does not
preclude the children from being the stirpital roots.
Indeed, our conclusion is consistent in this regard with
that of the Massachusetts Appeals Court in Bank of
New England, N.A. v. McKennan, supra, 19 Mass. App.
688–91, which concluded that the testator’s children
were the stirpital roots for the per stirpes division, even
though they could never receive gifts under the trust.
   The plaintiffs and Campion also rely on a number of
cases from New York to support the position that the
stirpital roots should be at the highest generational level
having any members still living at the time the Hubbell
Family Trusts terminate. Campion asserts that New
York’s proximity to Connecticut would make New York
law on the subject especially persuasive because attor-
neys in Connecticut, particularly those practicing in
Fairfield county, would be familiar with New York law
and would consider it when drafting trusts in Connecti-
cut. We disagree.
   First, it is undisputed that the Hubbell Family Trusts
explicitly provide that they are governed by Connecticut
law. Second, it is well established that New York law
differs significantly from Connecticut law regarding per
stirpes distribution. The consolidated laws of New York
provide in relevant part: ‘‘A per stirpes disposition or
distribution of property is made to persons who take
as issue of a deceased ancestor in the following manner:
The property so passing is divided into as many equal
shares as there are (i) surviving issue in the generation
nearest to the deceased ancestor which contains one
or more surviving issue and (ii) deceased issue in the
same generation who left surviving issue, if any. Each
surviving member in such nearest generation is allo-
cated one share. The share of a deceased issue in such
nearest generation who left surviving issue shall be
distributed in the same manner to such issue.’’ N.Y.
Est. Powers & Trusts Law § 1-2.14 (McKinney 2012).
Therefore, New York law explicitly provides that the
number of shares in the initial division of an estate is
to be based on the number of issue surviving at the
time of distribution. This law is wholly inconsistent with
Connecticut’s intestate statute, which provides that the
number of shares in the initial division of an estate,
after distribution is made to a surviving spouse, is to
be based on the number of children of the decedent,
regardless of whether the children are dead or alive.
See General Statutes § 45a-438 (a) (‘‘[a]fter distribution
has been made of the intestate estate to the surviving
spouse in accordance with section 45a-437, the residue
of the real and personal estate shall be distributed
equally, according to its value at the time of distribution,
among the children, including children born after the
death of the decedent . . . and the legal representa-
tives of any of them who may be dead’’).
   In addition to the choice of law provisions in the
Hubbell Family Trusts, the difference between the per
stirpes method of distribution in the applicable New
York statute and the method of distribution in the appli-
cable Connecticut statute makes the New York cases
cited by Campion inapplicable in the present case. It
is axiomatic that, in Connecticut, ‘‘in the absence of
words indicating a contrary intent, a will is to be inter-
preted as intending to distribute an estate per stirpes,
and in accordance with the [Connecticut] statute of
distributions.’’ Close v. Benham, supra, 97 Conn. 107.
   Campion also asserts that the trial court improperly
considered Restatement (Second) of Property and
Restatement (Third) of Property because neither one
was in existence at the time the Hubbell Family Trusts
were drafted and, therefore, was not available to the
testators or their attorneys. We disagree that reference
to these Restatements was improper. Restatements of
the law seek to compile and distill the common law that
exists. When seeking to ascertain the testator’s intent
in a particular testamentary instrument, we have never
limited our review to only cases decided prior to the
execution of the instrument. Indeed, a review of our case
law reveals that this court routinely refers to Restate-
ments that were published after the testamentary instru-
ment was executed. See, e.g., Hartford National Bank &
Trust Co. v. Thrall, supra, 184 Conn. 498, 504–505 (citing
to volume 3 of Restatement of Property, which was pub-
lished in 1940, to interpret will executed in 1916); Warren
v. First New Haven National Bank, supra, 150 Conn. 121,
126–27 (citing to volume 3 of Restatement of Property,
which was published in 1940, to interpret will executed
in 1937). Because Restatements are compilations of the
common law, we see no reason to treat them differently.
Accordingly, we conclude that it was not improper for the
trial court to rely on volume 3 of the Restatement (Second)
of Property, which was published in 1988, and volume 1
of the Restatement (Third) of Property, which was pub-
lished in 1999, to construe the trusts in the present case
that were executed in 1957.
   On the basis of the foregoing, we conclude that the trial
court properly granted the defendants’ motions for sum-
mary judgment and rendered judgment declaring that,
at the expiration of the term of the Hubbell Family Trusts,
the principal of those trusts should be distributed such
that each child of Harvey Hubbell III shall be the head
of each stirpe.
   The judgment is affirmed.
   In this opinion the other justices concurred.
   * March 30, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
   1
     Under a per stirpes distribution, ‘‘each deceased member of one genera-
tion is represented by his descendants of the next succeeding generation.
When a stirpital distribution is directed, it is necessary to determine who
are the heads of the respective stirpes.’’ Hartford National Bank & Trust
Co. v. Thrall, 184 Conn. 497, 505, 440 A.2d 200 (1981).
   2
     The original complaint and summons named numerous defendants,
including the three former trustees of the two family trusts, G. Jackson
Ratcliffe, Andrew McNally IV, and Richard W. Davies. Subsequently, those
defendants were substituted for Bessemer Trust Company, N.A. In the first
amended complaint, which is the operative complaint, the plaintiffs named
the trustee of the trusts, Bessemer Trust Company, N.A., and the following
individuals as the defendants: Elizabeth H. Schwerin, Francis Timothy
Schwerin, William Ham Hubbell, Blanca Acususo Hubbell, Harvey Hubbell
V, Lisa Lorraine Lugovich, Richard John Lugovich, Cynthia Carole Schwerin,
William Hale Hubbell, Stephen Michael Lugovich, John Daniel Lugovich,
Timothy Hale Schwerin, Mary Anastasia Campion, Seamus Francis Campion,
Martin Ambrose Campion, Augustine Lazarus Schwerin, Elizabeth Lorraine
Nunez, Clara Antonia Nunez, Alexandra Louie Hubbell, Craig Thomas
Schwerin, Brenda Mercedes Nunez, Jennifer Blanca Nunez, Talpa Guadalupe
Nunez, William Hale Lyon Alarcon Hubbell, Andrea Haas Hubbell, Nancy
Thomas Schwerin, and Arthur R. Regrave as the personal representative of
the estates of Harvey Hubbell IV and Anne Edwards Hubbell. After the
action was commenced, the trial court appointed three guardians ad litem
to represent the interests of minor, unborn or unascertained beneficiaries.
While the case was pending before the trial court, the court granted the
motion to add Tadhg William Campion as a defendant. We refer to the
defendants by name where appropriate and collectively as the defendants.
   3
     The plaintiffs and Campion separately appealed from the judgment of
the trial court to the Appellate Court, and we transferred those appeals to
this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-
1 or § 65-2.
   4
     Harvey Hubbell IV is referred to as Harvey Hubbell, Jr., in the Hubbell
Family Trusts. We refer to him as Harvey Hubbell IV for clarity.
   5
     Although Lisa Lorraine Lugovich is referred to as Lisa Lorraine Hubbell
in the Hubbell Family Trusts, we hereinafter refer to her as Lisa Lugovich
for consistency.
   6
     The Hubbell Family Trusts refer to the plaintiff Francis T. Schwerin, Jr.,
and not to the defendant Francis Timothy Schwerin.
   7
     Although Harvey Hubbell III is referred to as Harvey Hubbell in the
Hubbell Family Trusts, we refer to him as Harvey Hubbell III for clarity.
   8
     The Roche Trust includes Roche as a measuring life but does not include
Virginia W. Hubbell. The Hubbell Trust includes Virginia W. Hubbell but not
Roche. Because both Roche and Virginia W. Hubbell are deceased, these
differences do not impact our analysis.
   9
     The trial court found as follows: Roche died in 1961; Harvey Hubbell III
died in 1968; Virginia W. Hubbell died in 1998; and Harvey Hubbell IV died
in 2010. In addition, the parties represented in their briefs that William Ham
Hubbell died in 2017.
   10
      The parties assert and the trial court concluded that the distribution of
the principal of both of the Hubbell Family Trusts should occur in the same
manner. Although we ultimately agree with the trial court that the ‘‘the
corpus of each trust will be distributed in equal shares to the three children
of Harvey Hubbell III, with living descendants of each of the three children
succeeding to the shares of their deceased ancestors,’’ the basis for that
conclusion as it relates to the Roche Trust is slightly different from that of
the Hubbell Trust. Specifically, the language in the Roche Trust that provides
for the corpus to be divided ‘‘to the issue of the grantor then living’’ requires
that the first division of that trust principal would be to Roche’s one son,
Harvey Hubbell III. Because Harvey Hubbell III is no longer alive, at the
expiration of the trust, the corpus would be divided into three equal shares
with the living descendants of each of the three children of Harvey Hubbell
III succeeding to the shares of their deceased ancestors. Moreover, because
Harvey Hubbell III was the only child of Roche, this opinion does not
distinguish between the issue of Roche and the issue of Harvey Hubbell III,
and any reference in this opinion to the children or to the grandchildren of
the testators or of the grantors of the Hubbell Family Trusts is to the children
or the grandchildren of Harvey Hubbell III. See footnote 11 of this opinion.
   11
      We note that the initial division of the Roche Trust is into one share
representing 100 percent of the trust principal because Harvey Hubbell III
was the only child of Roche. The first true division of that trust principal
would be at the level of the children of Harvey Hubbell III, who would each
receive a one-third share, with the living descendants of each of the three
children succeeding to the shares of their deceased ancestors. See footnote
10 of this opinion.
   12
      General Statutes § 45a-438 (a) provides: ‘‘After distribution has been
made of the intestate estate to the surviving spouse in accordance with
section 45a-437, the residue of the real and personal estate shall be distrib-
uted equally, according to its value at the time of distribution, among the
children, including children born after the death of the decedent, as provided
in subsection (a) of section 45a-785, and the legal representatives of any of
them who may be dead, except that children or other descendants who
receive estate by advancement of the intestate in the intestate’s lifetime
shall themselves or their representatives have only so much of the estate
as will, together with such advancement, make their share equal to what they
would have been entitled to receive had no such advancement been made.’’
   13
      General Statutes § 45a-439 provides in relevant part: ‘‘(a) (1) If there
are no children or any legal representatives of them, then, after the portion
of the husband or wife, if any, is distributed or set out, the residue of the
estate shall be distributed equally to the parent or parents of the intestate,
except that no parent who has abandoned a minor child and continued such
abandonment until the time of death of such child shall be entitled to share
in the estate of such child or be deemed a parent for the purposes of
subdivisions (2) to (4), inclusive, of this subsection. (2) If there is no parent,
the residue of the estate shall be distributed equally to the brothers and
sisters of the intestate and those who legally represent them. (3) If there
is no parent or brothers and sisters or those who legally represent them,
the residue of the estate shall be distributed equally to the next of kin in
equal degree, and no representatives shall be admitted among collaterals
after the representatives of brothers and sisters. (4) If there is no next of
kin, the residue of the estate shall be distributed equally to the stepchildren
and those who legally represent them. . . .’’
   14
      The plaintiffs and Campion assert that it was improper for the trial
court to rely on the Uniform Probate Code in its analysis. Although the trial
court explained that its interpretation of the language in the Hubbell Family
Trusts was consistent with the Uniform Probate Code, it did not rely on
that code in reaching its conclusion. Furthermore, although we recognize
that Connecticut has not adopted the Uniform Probate Code, and that courts
of this state are not bound to follow it, it is useful, persuasive authority in
this context.
   15
      Mass. Ann. Laws c. 190, § 2 (Law. Co-op. 1981), provides: ‘‘The personal
property of a deceased person not lawfully disposed of by will shall, after
the payment of his debts and the charges of his last sickness and funeral
and of the settlement of the estate, and subject to the preceding section
and to chapter one hundred and ninety-six, be distributed among the persons
and in the proportions hereinafter prescribed for the descent of real
property.’’
   Mass. Ann. Laws c. 190, § 3 (Law. Co-op. 1981), provides in relevant part:
‘‘When a person dies seized of land, tenements or hereditaments, or of any
right thereto, or entitled to any interest therein, in fee simple or for the life
of another, not having lawfully devised the same, they shall descend, subject
to his debts and to the rights of the husband or wife and minor children of
the deceased as provided in this and in the two preceding chapters and in
chapter one hundred and ninety-six, as follows:
   ‘‘(1) In equal shares to his children and to the issue of any deceased child
by right of representation; and if there is no surviving child of the intestate
then to all his other lineal descendants. If all such descendants are in the
same degree of kindred to the intestate, they shall share the estate equally;
otherwise, they shall take according to the right of representation. . . .’’
   Mass. Ann. Laws c. 190, § 4 (Law. Co-op. 1981), provides: ‘‘Degrees of
kindred shall be computed according to the rules of the civil law; and the
kindred of the half blood shall inherit equally with those of the whole blood
in the same degree.’’
   Mass. Ann. Laws c. 190, §§ 2 through 4 (Law. Co-op. 1981), is now codified
as amended at Mass. Ann. Laws c. 190B, § 2-103 (LexisNexis 2011).
   16
      Although the Hubbell Family Trusts do single out some of the grandchil-
dren of Harvey Hubbell III as measuring lives, neither of the trusts singles
out the grandchildren individually or as a class for purposes of naming benefi-
ciaries.


Page 2                         CONNECTICUT LAW JOURNAL                            October 20, 2020




         300                         OCTOBER, 2020                  

                                      Schwerin v. Ratcliffe


                   FRANCIS T. SCHWERIN, JR., ET AL. v.
                       G. JACKSON RATCLIFFE,
                           TRUSTEE, ET AL.
                               (SC 20208)
                               (SC 20209)
                      Robinson, C. J., and Palmer, McDonald, D’Auria,
                               Mullins, Kahn and Ecker, Js.

                                            Syllabus
         The plaintiffs, potential beneficiaries of two family trusts, sought a judgment
            declaring the proper distribution of assets from those trusts. Each trust
            contained explicit language that, upon the expiration of the trust term,
            the trust principal was to be distributed to the grantor’s issue then living,
            per stirpes. The plaintiffs claimed that, upon the passing of the last
            measuring life, the principal of the trusts should be distributed in six
            equal amounts to the six grandchildren of H, the grantor of one of the
            trusts, and the son of the grantor of the other trust, and that the refer-
            enced distribution will be per stirpes, such that the one-sixth share that
            would have gone to any deceased grandchild of H will instead go to
            the issue of that grandchild. The plaintiffs filed a motion for summary
            judgment, claiming that there was no genuine issue of material fact that
            the trusts grant the principal to the grandchildren of H or their families
            in equal shares. Certain defendants, other potential beneficiaries of the
            trust, also filed motions for summary judgment, claiming that there was
            no genuine issue of material fact with respect to the interpretation of
            the two trusts and that the court should render judgment declaring that,
            at the expiration of the term of those trusts, the principal of the trusts
            should be distributed such that each of the three children of H shall be
            the head of each stirpe. The trial court denied the plaintiffs’ motion
            for summary judgment, granted the defendants’ motions for summary
            judgment, and rendered judgment declaring that, upon the termination
            of the two trusts, the corpus of each trust will be distributed in equal
            shares to the three children of H, with living descendants of each of
            the three children succeeding to the shares of their deceased ancestors.
            The plaintiffs and the defendant C filed separate appeals from the trial
            court’s judgment. On appeal, although the parties generally agreed that
            the grantors of the trusts intended a per stirpes distribution, the plaintiffs
            claimed that the stirpital roots should begin at the level of the grandchil-
            dren, resulting in the trust principal being initially divided into six equal
            shares. C claimed that the stirpital roots should be determined once
            the trust terms expire and that the roots should be at whatever level
            of descendants has members living at the time of expiration. The other
            defendants participating in these appeals claimed that the trial court
            correctly determined that the stirpital roots should be at the level of
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               OCTOBER, 2020                                   301
                                      Schwerin v. Ratcliffe
             the children, resulting in the trust principal being initially divided into
             three equal shares. Held that the trial court correctly determined that
             the trusts unambiguously provided that the heads of the respective
             stirpes should be the grantors’ children and, accordingly, properly
             granted the defendants’ motion for summary judgment and rendered
             judgment in their favor: Connecticut case law and the Restatement
             (Second) of Property, which provides that, when a gift is made to a
             class described as the ‘‘issue’’ of a designated person, in the absence
             of additional language or circumstances that indicate otherwise, the
             initial division into shares will be on the basis of the number of class
             members, whether alive or deceased, in the first generation below the
             designated person, supported the conclusion that the grantors’ use of
             the term ‘‘issue’’ in the trusts at issue indicated that the grantors intended
             the trust principal to be divided into equal shares on the basis of the
             number of their children, which was the first generation below each
             grantor, and that conclusion was consistent with case law favoring an
             equal distribution of a grantor’s estate among the several branches of
             his or her family, which could be accomplished in the present case only
             if the trust principal is divided with the three children of H serving as
             the stirpital roots, consistent with this state’s intestate statutes (§§ 45a-
             438 (a) and 45a-437), which provide for a per stirpes plan of distribution
             and provide for the stirpital roots to be established at the first generation
             after the decedent, and consistent with the Uniform Probate Code, which
             provides that, if an instrument calls for property to be distributed ‘‘per
             stirpes,’’ the property must be divided into as many equal shares as
             there are surviving children of the designated person and deceased
             children who left surviving descendants; moreover, contrary to the claim
             of the plaintiffs and C that, because the two trusts both provided for
             the principal to be distributed to the grantors’ issue ‘‘then living,’’ mean-
             ing that the grantors intended the initial division of each trust to be to
             the issue living when the trust terminates, the grantors could not have
             intended for the initial division to be at the level of the three children
             of H, who were measuring lives of each trust, as the use of the term
             ‘‘then living’’ did not modify the method of distributing the trust principal
             but merely conditioned the receipt of a distribution from those trusts
             on those issue who survive their expiration; furthermore, although the
             plaintiffs and C relied on Connecticut cases for the proposition that, if
             a testator excludes the children as beneficiaries under the trust and
             directs the gifts to the grandchildren, then the children cannot receive
             the gifts as representatives of their parents, those authorities, which
             involved trust documents that directed the gift to a particular class or
             group of persons, rather than to the more general class of ‘‘issue,’’ were
             not applicable to the present case, as the two trusts at issue do not
             name a particular class to receive the gifts.
              Argued September 17, 2019—officially released March 30, 2020*

            * March 30, 2020, the date that this decision was released as a slip opinion,
         is the operative date for all substantive and procedural purposes.
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                             Schwerin v. Ratcliffe

                              Procedural History

            Action for a judgment declaring the proper method
         for distributing the principal of certain trusts, brought
         to the Superior Court in the judicial district of Hartford
         and transferred to the Complex Litigation Docket, where
         Bessemer Trust Company, N.A., was substituted for the
         named defendant et al.; thereafter, the court, Sheridan,
         J., appointed three guardians ad litem to represent the
         interests of various individuals; subsequently, Tadhg
         William Campion was added as a defendant; thereafter,
         the court denied the plaintiffs’ motion for summary judg-
         ment, granted the separate motions for summary judg-
         ment filed by the defendant William Hale Hubbell et
         al. and by the defendant Harvey Hubbell V et al., and
         rendered judgment for the defendants, from which the
         plaintiffs and Tadhg William Campion filed separate
         appeals. Affirmed.
           Brian O’Donnell, with whom were John R. Ivimey
         and Mary Mintel Miller, for the appellants in Docket
         No. SC 20208 and the appellees in Docket No. SC
         20209 (plaintiffs).
            Linda L. Morkan, with whom was Andrew A. DePeau,
         for the appellee in Docket No. SC 20208 and the appel-
         lant in Docket No. SC 20209 (defendant Tadhg Wil-
         liam Campion).
           Jonathan J. Meter, for the appellees in Docket Nos.
         SC 20208 and SC 20209 (defendant Harvey Hubbell V
         et al.).
           Steven M. Wise, pro hac vice, with whom was David
         B. Zabel, for the appellees in Docket Nos. SC 20208 and
         SC 20209 (defendant William Hale Hubbell et al.).
           John A. Farnsworth, with whom was Karen Yates,
         for the appellee in Docket Nos. SC 20208 and SC 20209
         (substitute defendant Bessemer Trust Company, N.A.).
           Robert B. Flynn, for the appellee in Docket Nos. SC
         20208 and SC 20209 (Michael D. O’Connell, guardian
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             OCTOBER, 2020                                303
                                    Schwerin v. Ratcliffe

         ad litem for the minor, unborn and unascertained descen-
         dants of the named plaintiff).
           James K. Robertson, Jr., self-represented, with whom
         was Brian Henebry, for the appellee in Docket Nos.
         SC 20208 and SC 20209 (James K. Robertson, Jr., guard-
         ian ad litem for the minor, unborn and unascertained
         descendants of the defendant Harvey Hubbell V et al.)
                                          Opinion

            MULLINS, J. The primary issue in these appeals is
         whether the trial court properly determined the correct
         generation to serve as the root for the per stirpes distri-
         bution of two family trusts. The appeals arise from an
         action filed by the plaintiffs, Francis T. Schwerin, Jr.,
         and Brenda Hubbell Schwerin, seeking a declaratory
         judgment regarding the proper distribution of assets
         from the two family trusts. Each trust contains language
         that, upon the expiration of the trust term, the trust
         principal is to be distributed to the grantor’s issue then
         living, per stirpes.1 The plaintiffs are potential benefici-
         aries of these trusts and brought this action against the
         defendants,2 who are the trustees of the trusts and other
           1
              Under a per stirpes distribution, ‘‘each deceased member of one genera-
         tion is represented by his descendants of the next succeeding generation.
         When a stirpital distribution is directed, it is necessary to determine who
         are the heads of the respective stirpes.’’ Hartford National Bank & Trust
         Co. v. Thrall, 

, 

 (1981).
            2
              The original complaint and summons named numerous defendants,
         including the three former trustees of the two family trusts, G. Jackson
         Ratcliffe, Andrew McNally IV, and Richard W. Davies. Subsequently, those
         defendants were substituted for Bessemer Trust Company, N.A. In the first
         amended complaint, which is the operative complaint, the plaintiffs named
         the trustee of the trusts, Bessemer Trust Company, N.A., and the following
         individuals as the defendants: Elizabeth H. Schwerin, Francis Timothy
         Schwerin, William Ham Hubbell, Blanca Acususo Hubbell, Harvey Hubbell
         V, Lisa Lorraine Lugovich, Richard John Lugovich, Cynthia Carole Schwerin,
         William Hale Hubbell, Stephen Michael Lugovich, John Daniel Lugovich,
         Timothy Hale Schwerin, Mary Anastasia Campion, Seamus Francis Campion,
         Martin Ambrose Campion, Augustine Lazarus Schwerin, Elizabeth Lorraine
         Nunez, Clara Antonia Nunez, Alexandra Louie Hubbell, Craig Thomas
         Schwerin, Brenda Mercedes Nunez, Jennifer Blanca Nunez, Talpa Guadalupe
         Nunez, William Hale Lyon Alarcon Hubbell, Andrea Haas Hubbell, Nancy
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                                    Schwerin v. Ratcliffe

         potential beneficiaries. The trial court rendered sum-
         mary judgment for the defendants, and the plaintiffs
         and the defendant Tadhg William Campion (Campion)
         filed separate appeals.3
            On appeal, the plaintiffs assert that the trial court
         incorrectly concluded that the language of the trust
         agreements treats the children of the grantors as the
         heads of the respective stirpes for purposes of distribu-
         tion of the trust principal. The plaintiffs further assert
         that the trust agreement provides that the heads of the
         respective stirpes should, instead, be at the level of
         the grandchildren. Contrary to the plaintiffs’ position,
         Campion asserts in his appeal that the language of the
         trusts establishes that the heads of the respective stir pes
         should be at the highest generational level with a mem-
         ber living at the time the trusts terminate. In response, the
         other defendants participating in the appeals assert that
         the trial court correctly determined that the trust instru-
         ments unambiguously provide that the heads of the respec-
         tive stirpes should be the grantors’ children. We agree with
         those defendants and, accordingly, affirm the judgment of
         the trial court.
            The record reveals the following undisputed facts and
         procedural history. This dispute revolves around the
         proper interpretation of two inter vivos trusts (Hubbell
         Family Trusts). One trust was created by Harvey Hub-
         bell III on August 23, 1957, and was amended on October
         9, 1963 (Hubbell Trust). The other trust was created by
         Thomas Schwerin, and Arthur R. Regrave as the personal representative of
         the estates of Harvey Hubbell IV and Anne Edwards Hubbell. After the
         action was commenced, the trial court appointed three guardians ad litem
         to represent the interests of minor, unborn or unascertained beneficiaries.
         While the case was pending before the trial court, the court granted the
         motion to add Tadhg William Campion as a defendant. We refer to the
         defendants by name where appropriate and collectively as the defendants.
           3
             The plaintiffs and Campion separately appealed from the judgment of
         the trial court to the Appellate Court, and we transferred those appeals to
         this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-
         1 or § 65-2.
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              OCTOBER, 2020                                 305
                                     Schwerin v. Ratcliffe

         the mother of Harvey Hubbell III, Louie E. Roche, on
         September 2, 1957 (Roche Trust).
            The Hubbell Trust provides that it will expire upon
         ‘‘the death of the last survivor of the grantor [Harvey
         Hubbell III], his wife Virginia W. Hubbell, his children
         Harvey Hubbell, Jr.,4 William [Ham] Hubbell and Eliza-
         beth H. Schwerin, and his grandchildren Lisa Lorraine
         Hubbell5 and Francis Timothy Schwerin6 . . . .’’ (Foot-
         notes added.)
            The Roche Trust provides that it will expire upon
         ‘‘the death of the last survivor of the grantor [Roche],
         her son Harvey Hubbell,7 her grandchildren Harvey
         Hubbell, Jr., William [Ham] Hubbell and Elizabeth H.
         Schwerin, and her great-grandchildren Lisa [Lugovich]
         and Francis Timothy Schwerin . . . .’’ (Footnotes
         added.)
            Thus, the measuring lives for the Hubbell Family
         Trusts are as follows: Harvey Hubbell III; Roche, the
         mother of Harvey Hubbell III; Virginia W. Hubbell, the
         wife of Harvey Hubbell III; Harvey Hubbell IV, a son of
         Harvey Hubbell III; the defendant William Ham Hubbell,
         a son of Harvey Hubbell III; the defendant Elizabeth H.
         Schwerin, the daughter of Harvey Hubbell III; and the
         plaintiff Francis T. Schwerin, Jr., and the defendant Lisa
         Lugovich, the two grandchildren of Harvey Hubbell III
         who were alive at the time those trusts were created.8
           4
             Harvey Hubbell IV is referred to as Harvey Hubbell, Jr., in the Hubbell
         Family Trusts. We refer to him as Harvey Hubbell IV for clarity.
           5
             Although Lisa Lorraine Lugovich is referred to as Lisa Lorraine Hubbell
         in the Hubbell Family Trusts, we hereinafter refer to her as Lisa Lugovich
         for consistency.
           6
             The Hubbell Family Trusts refer to the plaintiff Francis T. Schwerin, Jr.,
         and not to the defendant Francis Timothy Schwerin.
           7
             Although Harvey Hubbell III is referred to as Harvey Hubbell in the
         Hubbell Family Trusts, we refer to him as Harvey Hubbell III for clarity.
           8
             The Roche Trust includes Roche as a measuring life but does not include
         Virginia W. Hubbell. The Hubbell Trust includes Virginia W. Hubbell but not
         Roche. Because both Roche and Virginia W. Hubbell are deceased, these
         differences do not impact our analysis.
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         306                        OCTOBER, 2020                 

                                     Schwerin v. Ratcliffe

         Accordingly, the Hubbell Family Trusts will expire upon
         the death of the last survivor of the measuring lives.
           Five of the individuals who are the measuring lives
         are deceased.9 The plaintiff Francis T. Schwerin, Jr., and
         the defendants Elizabeth H. Schwerin and Lisa Lugovich
         are still alive. It is undisputed that the Hubbell Family
         Trusts will expire upon the death of the last survivor
         of those three individuals.
           The trust language at issue in these appeals is the lan-
         guage that addresses the distribution of the principal of
         the Hubbell Family Trusts upon expiration. The Hubbell
         Trust provides in relevant part: ‘‘Upon the expiration
         of the trust term the trustees, subject to the provisions
         hereinafter contained, shall convey and deliver all prop-
         erty then belonging to the principal of the trust to grant-
         or’s issue then living, per stirpes.’’
            The Roche Trust provides in relevant part: ‘‘Upon the
         expiration of the trust term the trustees shall convey
         and deliver all property then belonging to the trust,
         including the principal and any undistributed income
         thereof, absolutely to the issue of the grantor then living,
         per stirpes, or in default of such issue to the persons
         who would be entitled to take the same in accordance
         with the laws of the [s]tate of Connecticut then in force
         if the grantor had died at the expiration of the trust
         term, intestate, and a resident of the [s]tate of Connecti-
         cut, and the absolute owner of said property.’’
           The plaintiffs brought this declaratory judgment
         action in the Superior Court, asking the court to resolve
         the conflict over the proper method for distribution
         of the trust principal when the Hubbell Family Trusts
         expire. Specifically, the plaintiffs asked the trial court
         to declare that, ‘‘upon the passing of the last measur-
           9
             The trial court found as follows: Roche died in 1961; Harvey Hubbell III
         died in 1968; Virginia W. Hubbell died in 1998; and Harvey Hubbell IV died
         in 2010. In addition, the parties represented in their briefs that William Ham
         Hubbell died in 2017.
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      OCTOBER, 2020                     307
                             Schwerin v. Ratcliffe

         ing life—i.e., the passing of the last of [Elizabeth H.
         Schwerin, Francis T. Schwerin, Jr., and Lisa Lugovich]—
         the principal of the Hubbell Family Trusts will be dis-
         tributed in six equal amounts to the six grandchildren
         of Harvey Hubbell III, and the referenced distribution
         will be per stirpes, such that the one-sixth share that
         would have gone to any deceased grandchild of Harvey
         Hubbell III will instead go to the issue of each such
         deceased grandchild.’’ The plaintiffs filed a motion for
         summary judgment, alleging that there was ‘‘no genuine
         issue of material fact that [the Hubbell Family Trusts]
         grant principal to . . . [the grandchildren of Harvey
         Hubbell III] or their families in equal shares.’’
            The defendants William Hale Hubbell and William
         Hale Lyon Alarcon Hubbell (William Hale Hubbell
         defendants) also filed a motion for summary judgment,
         asserting that there was no genuine issue of material
         fact with respect to the interpretation of the Hubbell
         Family Trusts. They further asserted that the court
         should render judgment declaring that, at the expiration
         of the term of the Hubbell Family Trusts, the principal
         of those trusts should be distributed such that each
         child of Harvey Hubbell III shall be the head of each
         stirpe.
            The defendants Harvey Hubbell V, Lisa Lugovich,
         Richard John Lugovich, Stephen Michael Lugovich and
         John Daniel Lugovich (Lugovich defendants) also filed
         a motion for summary judgment, claiming that there
         was no genuine issue of material fact as to any allega-
         tions raised in the complaint. They also claimed that,
         ‘‘upon termination of the Hubbell Family Trusts, the
         corpus of each trust should be divided equally into three
         shares, which are representative of the three children
         of Harvey Hubbell III, with living descendants of each
         of the three children succeeding to the shares of their
         deceased ancestors . . . .’’
          The trial court denied the plaintiffs’ motion for sum-
         mary judgment and granted the motions for summary
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          308                 OCTOBER, 2020            

                               Schwerin v. Ratcliffe

          judgment filed by the William Hale Hubbell defendants
          and the Lugovich defendants. The trial court then ren-
          dered judgment in favor of the defendants and declared
          as follows: ‘‘Upon the termination of the August 23,
          1957 [Hubbell Trust], as amended on October 9, 1963,
          and the September 2, 1957 [Roche Trust], by the passing
          of [the] last measuring life under said trusts, the corpus
          of each trust will be distributed in equal shares to the
          three children of Harvey Hubbell III, with living descen-
          dants of each of the three children succeeding to the
          shares of their deceased ancestors.’’ These appeals
          followed.
             We begin by setting forth the standard of review that
          governs our review of the claims on appeal. ‘‘The stan-
          dard of review of a trial court’s decision granting sum-
          mary judgment is well established. Practice Book § 17-
          49 provides that summary judgment shall be rendered
          forthwith if the pleadings, affidavits and any other proof
          submitted show that there is no genuine issue as to any
          material fact and that the moving party is entitled to
          judgment as a matter of law. . . . Our review of the
          trial court’s decision to grant the defendant’s motion
          for summary judgment is plenary. . . . On appeal, we
          must determine whether the legal conclusions reached
          by the trial court are legally and logically correct and
          whether they find support in the facts set out in the
          memorandum of decision of the trial court.’’ (Internal
          quotation marks omitted.) King v. Volvo Excavators
          AB, 

, 290–91, 

 (2019).
             The resolution of these appeals requires us to deter-
          mine the proper interpretation of substantially similar
          language in each of the Hubbell Family Trusts. Specifi-
          cally, the Roche Trust provides that the trust principal
          shall be distributed ‘‘to the issue of the grantor then
          living, per stirpes . . . .’’ The Hubbell Trust provides
          that the trust principal shall be distributed ‘‘to grantor’s
          issue then living, per stirpes.’’ All of the parties are in
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               OCTOBER, 2020                                  309
                                      Schwerin v. Ratcliffe

         agreement that those two trusts should be interpreted
         in the same manner. The dispute involves the issue of
         which generation should serve as the stirpital roots.10

            ‘‘[W]here the manifestation of the settlor’s intention
         is integrated in a writing, that is, if a written instrument
         is adopted by the settlor as the complete expression of
         the settlor’s intention, extrinsic evidence is not admis-
         sible to contradict or vary the terms of the instrument
         in the absence of fraud, duress, undue influence, mis-
         take, or other ground for reformation or rescission. . . .
         If a [trust instrument] is unambiguous within its four
         corners, intent of the parties is a question of law requir-
         ing plenary review. . . . Where the language of the
         [trust instrument] is clear and unambiguous, the [instru-
         ment] is to be given effect according to its terms. A
         court will not torture words to import ambiguity where
         the ordinary meaning leaves no room for ambiguity
         . . . . Similarly, any ambiguity in a [trust instrument]
         must emanate from the language used . . . rather than
         from one party’s subjective perception of the terms. . . .
            10
               The parties assert and the trial court concluded that the distribution of
         the principal of both of the Hubbell Family Trusts should occur in the same
         manner. Although we ultimately agree with the trial court that the ‘‘the
         corpus of each trust will be distributed in equal shares to the three children
         of Harvey Hubbell III, with living descendants of each of the three children
         succeeding to the shares of their deceased ancestors,’’ the basis for that
         conclusion as it relates to the Roche Trust is slightly different from that of
         the Hubbell Trust. Specifically, the language in the Roche Trust that provides
         for the corpus to be divided ‘‘to the issue of the grantor then living’’ requires
         that the first division of that trust principal would be to Roche’s one son,
         Harvey Hubbell III. Because Harvey Hubbell III is no longer alive, at the
         expiration of the trust, the corpus would be divided into three equal shares
         with the living descendants of each of the three children of Harvey Hubbell
         III succeeding to the shares of their deceased ancestors. Moreover, because
         Harvey Hubbell III was the only child of Roche, this opinion does not
         distinguish between the issue of Roche and the issue of Harvey Hubbell III,
         and any reference in this opinion to the children or to the grandchildren of
         the testators or of the grantors of the Hubbell Family Trusts is to the children
         or the grandchildren of Harvey Hubbell III. See footnote 11 of this opinion.
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                               Schwerin v. Ratcliffe

             ‘‘If, however, the trust instrument is an incomplete
          expression of the settlor’s intention or if the meaning of
          the writing is ambiguous or otherwise uncertain, evidence
          of the circumstances and other indications of the trans-
          feror’s intent are admissible to complete the terms of
          the writing or to clarify or ascertain its meaning . . . .’’
          (Citations omitted; internal quotation marks omitted.)
          Palozie v. Palozie, 

, 547–48, 

          (2007). Furthermore, ‘‘[i]t is well settled that in the con-
          struction of a testamentary trust, the expressed intent of
          the testator must control. This intent is to be determined
          from reading the instrument as a whole in the light of
          the circumstances surrounding the testator when the
          instrument was executed, including the condition of his
          estate, his relations to his family and beneficiaries and
          their situation and condition.’’ (Internal quotation marks
          omitted.) Pikula v. Dept. of Social Services, 

, 

 (2016).

             ‘‘The cardinal rule of testamentary construction is the
          ascertainment and effectuation of the intent of the testa-
          tor, if that [is] possible. If this intent, when discovered,
          has been adequately expressed and is not contrary to
          some positive rule of law, it will be carried out. . . . The
          most inflexible rule of testamentary construction and
          one universally recognized is that the intention of the
          testator should govern the construction, and this inten-
          tion is to be sought in the language used by the testator
          in the light of the circumstances surrounding and known
          to him at the time the will was executed. . . . In seek-
          ing the testator’s testamentary intent, the court looks
          first to the will itself . . . . It studies the will as an
          entirety. The quest is to determine the meaning of what
          the [testator] said and not to speculate upon what [he]
          meant to say . . . .’’ (Citations omitted; internal quota-
          tion marks omitted.) Hartford National Bank & Trust
          Co. v. Thrall, 

, 

 (1981).
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       OCTOBER, 2020                      311
                              Schwerin v. Ratcliffe

           With these principles in mind, we return to the lan-
         guage of the Hubbell Family Trusts. The Roche Trust
         requires the principal to be distributed ‘‘to the issue of
         the grantor then living, per stirpes . . . .’’ The Hubbell
         Trust provides that the trust principal shall be distrib-
         uted ‘‘to grantor’s issue then living, per stirpes.’’
            ‘‘Per stirpes means literally by roots or stock or by
         representation. Black’s Law Dictionary (5th Ed. [1979])
         [p. 1030]. Under a stirpital distribution, each deceased
         member of one generation is represented by his descen-
         dants of the next succeeding generation. When a stirpi-
         tal distribution is directed, it is necessary to determine
         who are the heads of the respective stirpes.’’ Hartford
         National Bank & Trust Co. v. 

.
            It is well established ‘‘that, in the absence of words
         indicating a contrary intent, a will is to be interpreted
         as intending to distribute an estate per stirpes, and in
         accordance with the [Connecticut] statute of distribu-
         tions.’’ Close v. Benham, 

, 

         (1921). ‘‘[T]he per stirpes . . . rule has for two centu-
         ries commended itself to the judgment of the commu-
         nity as one of justice, and has been and is the rule
         applied by the law in [the] case of intestate estate. . . .
         The statute of distribution governs in all cases where
         there is no will; and where there is one, and the testa-
         tor’s intention is in doubt, the statute is a safe guide.’’
         (Citation omitted; internal quotation marks omitted.)
         Heath v. Bancroft, 

, 223–24 (1881).
           Indeed, ‘‘we have held in numerous cases that, in the
         absence of any direction to the contrary, the per stirpes
         rule of distribution should be adopted. . . . In most of
         these there was some implication of an intent to make
         a per stirpes distribution, though no explicit direction
         to that effect, and in some the unequal consequences
         of a per capita distribution were pointed out as one of
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          312                  OCTOBER, 2020           

                               Schwerin v. Ratcliffe

          the considerations in favor of adopting the per stirpes
          rule.’’ (Citation omitted.) Mooney v. Tolles, 

, 12–13, 

 (1930). In the present case, not
          only do we presume a per stirpes method of distribution
          in the absence of any explicit language to the contrary,
          but the language in the Hubbell Family Trusts explicitly
          provides for distribution on a per stirpes basis.
             That does not end our inquiry, however. In the present
          case, although the parties generally agree that the testa-
          tors intended a per stirpes distribution, they dispute
          what that means under the circumstances. Specifically,
          the plaintiffs assert that the stirpital roots should begin
          at the level of the grandchildren, resulting in the trust
          principal being initially divided into six equal shares.
          Campion asserts that the stirpital roots should be deter-
          mined once the Hubbell Family Trusts expire and that
          the roots should be at whatever level of descendants
          has members living at the time of expiration. The other
          defendants participating in the appeals assert that the
          trial court correctly determined that the stirpital roots
          should be at the level of the children, resulting in the
          trust principal being initially divided into three equal
          shares.
              Having concluded that the Hubbell Family Trusts
          require per stirpes distribution, we turn back to the
          language of those trusts to determine the proper genera-
          tional level at which to locate the stirpital roots. Specifi-
          cally, we consider what the grantors meant by the use
          of the term ‘‘issue,’’ as used in the operative language
          of the Hubbell Family Trusts. ‘‘ ‘In construing the word
          ‘‘issue,’’ we have often noted that, in its primary mean-
          ing, ‘‘issue’’ connotes lineal relationship by blood.’ . . .
          The word ‘will be so construed unless it clearly appears
          that [it was] used in a more extended sense.’ ’’ (Citation
          omitted.) Connecticut Bank & Trust Co. v. Coffin, 

, 

 (1989). This court has also
          recognized that ‘‘antilapse statutes generally obtaining
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             OCTOBER, 2020                                313
                                    Schwerin v. Ratcliffe

         in the United States . . . allow a construction of ‘issue’
         in a manner permitting a distribution per capita among
         the first generation with a per stirpes representation in
         the next generation . . . .’’ Warren v. First New Haven
         National Bank, 

, 124–25, 

         (1962). In other words, the initial division is to be made
         in as many shares as there are members of the first genera-
         tion (per capita), and each deceased member of one gener-
         ation is represented by his or her descendants of the next
         succeeding generation (per stirpes).
            The Restatement (Second) of Property is consistent
         with our case law. It explains as follows: ‘‘If a gift is made
         to a class described as the ‘issue’ or ‘descendants’ of a
         designated person, or by a similar multigenerational class
         gift term, in the absence of additional language or cir-
         cumstances that indicate otherwise . . . (3) the initial
         division into shares will be on the basis of the number
         of class members, whether alive or deceased, in the
         first generation below the designated person.’’ 3 Restate-
         ment (Second), Property, Donative Transfers § 28.2, p.
         254 (1988). Applying this principle to the language in
         the Hubbell Family Trusts supports our conclusion that
         the grantors’ use of the term ‘‘issue’’ indicates that the
         grantors intended the trust principal to be divided into
         equal shares on the basis of the number of their children,
         as that was the first generation below each grantor.11
            Comment (b) to § 28.2 of the Restatement (Second)
         further explains: ‘‘If a gift is made to the ‘issue’ or ‘descen-
         dants’ of a designated person, in the absence of addi-
         tional language or circumstances that indicate other-
           11
             We note that the initial division of the Roche Trust is into one share
         representing 100 percent of the trust principal because Harvey Hubbell III
         was the only child of Roche. The first true division of that trust principal
         would be at the level of the children of Harvey Hubbell III, who would each
         receive a one-third share, with the living descendants of each of the three
         children succeeding to the shares of their deceased ancestors. See footnote
         10 of this opinion.
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                               Schwerin v. Ratcliffe

          wise, the initial division of the subject matter is made
          into as many shares as there are issue, whether living
          or not, of the designated person in the first degree of
          relationship to the designated person. Each issue in the
          first degree of relationship who survives to the date of
          distribution takes one share of the subject matter of
          the gift to the exclusion of any of such first degree issue’s
          descendants. The share of an issue of the first degree who
          does not survive to the date of distribution is divided
          into as many shares as there are descendants, whether
          living or not, of that deceased issue who are in the sec-
          ond degree of relationship to the person whose issue
          are designated. Such issue in the second degree of rela-
          tionship [who] survive to the date of distribution each
          take one share resulting from such division to the exclu-
          sion of their respective descendants. The share of an
          issue of the second degree who does not survive to the
          date of distribution is divided into as many shares as
          there are descendants, whether living or not, in the third
          degree of relationship to the designated ancestor who
          are also descendants of the deceased second degree
          descendant, etc. This is referred to as a per stirpes plan
          of distribution.’’ 

 § 28.2, comment (b), p. 255. In the
          present case, as we explained previously in this opinion,
          the testators explicitly provided for a per stirpes plan
          of distribution, and interpreting ‘‘issue’’ as requiring that
          division to begin with their children is consistent with
          that express instruction.
             We are also guided by the fact that this court has
          explained that ‘‘[j]urisdictions in the United States . . .
          have tended toward a construction in favor of a per
          stirpes division and have construed ‘issue,’ when its
          meaning is unrestricted by the context, as including all
          lineal descendants in the order in which they would be
          entitled, at the death of the ancestor, to take his prop-
          erty under the law of intestate succession.’’ Warren v.
          First New Haven National Bank, supra, 

.
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        OCTOBER, 2020                       315
                              Schwerin v. Ratcliffe

         Indeed, we have stated that, ‘‘[w]hen a conveyance cre-
         ates a class gift by a limitation in favor of a group
         described as the issue of B . . . then, unless a contrary
         intent of the conveyor is found from additional language
         or circumstances, distribution is made to such members
         of the class as would take, and in such shares as they
         would receive, under the applicable law of intestate suc-
         cession if B had died intestate on the date of the final
         ascertainment of the membership in the class, owning
         the subject matter of the class gift.’’ (Internal quotation
         marks omitted.) 

 126–27, quoting 3 Restatement,
         Property § 303 (1), p. 1655 (1940). Therefore, in the
         present case, the testators’ unqualified use of the term
         ‘‘issue’’ supports the application of a per stirpes plan of
         distribution with the stirpital roots at the generation of
         their children.
            In this case, as we previously have noted, the trust
         instruments explicitly call for a distribution on a per stir-
         pes basis without any other explicit direction. Thus, our
         resolution of this case requires that we consider the
         rationale supporting a per stirpes method of distribution
         because that rationale informs the proper generational
         level at which to locate the stirpital roots. As this court
         has explained, when the testator has not expressly pro-
         vided otherwise, our law favors an equal distribution
         of the testator’s estate ‘‘among the several branches of
         his family . . . .’’ (Emphasis added.) Stamford Trust
         Co. v. Lockwood, 

, 

 (1922),
         overruled in part on other grounds by Connecticut
         Bank & Trust Co. v. Coffin, 

, 

 (1989). In the present case, each child represents
         a branch of the grantor’s family. Specifically, the grantor
         Harvey Hubbell III had three children, namely, William
         Ham Hubbell, Harvey Hubbell IV, and Elizabeth H.
         Schwerin. Therefore, there are three branches of that
         grantor’s family. William Ham Hubbell had one child,
         Harvey Hubbell IV had two children and Elizabeth H.
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                                     Schwerin v. Ratcliffe

          Schwerin had three children. Thus, if the trust principal
          is divided with the grandchildren serving as the stirpital
          roots or with the stirpital roots anywhere other than at
          the level of the children, there will be an unequal distri-
          bution of the estate of Harvey Hubbell III among the three
          branches of his family. That is, the branch of the family
          representing Elizabeth H. Schwerin would receive the
          most because she had three children, the branch repre-
          senting Harvey Hubbell IV would receive the second
          most because he had two children and the branch repre-
          senting William Ham Hubbell would receive the least
          because he had only one child. As this court concluded
          in Stamford Trust Co. ‘‘[t]hat a per capita distribution
          among issue of every degree would . . . result in an
          unequal distribution of the testator’s estate among the
          several branches of his family, is apparent. On the other
          hand, a distribution per stirpes among the issue of what-
          ever degree, the issue of each life tenant taking as a
          class by right of representation, satisfies not only the
          language of the will and the indicated intent of the
          testator, but also the policy of our law.’’ Stamford Trust
          Co. v. 

.
            Such a distribution is also consistent with Connecti-
          cut’s intestate statutes, which provide for a per stirpes
          plan of distribution and provide for the stirpital roots
          to be established at the first generation after the dece-
          dent. See General Statutes § 45a-438 (a)12 (‘‘[a]fter distri-
             12
                General Statutes § 45a-438 (a) provides: ‘‘After distribution has been
          made of the intestate estate to the surviving spouse in accordance with
          section 45a-437, the residue of the real and personal estate shall be distrib-
          uted equally, according to its value at the time of distribution, among the
          children, including children born after the death of the decedent, as provided
          in subsection (a) of section 45a-785, and the legal representatives of any of
          them who may be dead, except that children or other descendants who
          receive estate by advancement of the intestate in the intestate’s lifetime
          shall themselves or their representatives have only so much of the estate
          as will, together with such advancement, make their share equal to what they
          would have been entitled to receive had no such advancement been made.’’
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               OCTOBER, 2020                                   317
                                      Schwerin v. Ratcliffe

         bution has been made of the intestate estate to the sur-
         viving spouse in accordance with section 45a-437, the
         residue of the real and personal estate shall be distrib-
         uted equally, according to its value at the time of distri-
         bution, among the children, including children born
         after the death of the decedent . . . and the legal repre-
         sentatives of any of them who may be dead’’); see also
         General Statutes § 45a-439.13 Therefore, the law of intes-
         tate succession in Connecticut supports an interpreta-
         tion of the language of the Hubbell Family Trusts that
         provides for an initial division into three equal shares
         among the three children of Harvey Hubbell III, which
         is then to be distributed on a per stirpes basis.
            Our interpretation of the Hubbell Family Trusts is
         also consistent with the Uniform Probate Code,14 which
         provides in relevant part: ‘‘If a governing instrument
         calls for property to be distributed ‘per stirpes,’ the prop-
            13
               General Statutes § 45a-439 provides in relevant part: ‘‘(a) (1) If there
         are no children or any legal representatives of them, then, after the portion
         of the husband or wife, if any, is distributed or set out, the residue of the
         estate shall be distributed equally to the parent or parents of the intestate,
         except that no parent who has abandoned a minor child and continued such
         abandonment until the time of death of such child shall be entitled to share
         in the estate of such child or be deemed a parent for the purposes of
         subdivisions (2) to (4), inclusive, of this subsection. (2) If there is no parent,
         the residue of the estate shall be distributed equally to the brothers and
         sisters of the intestate and those who legally represent them. (3) If there
         is no parent or brothers and sisters or those who legally represent them,
         the residue of the estate shall be distributed equally to the next of kin in
         equal degree, and no representatives shall be admitted among collaterals
         after the representatives of brothers and sisters. (4) If there is no next of
         kin, the residue of the estate shall be distributed equally to the stepchildren
         and those who legally represent them. . . .’’
            14
               The plaintiffs and Campion assert that it was improper for the trial
         court to rely on the Uniform Probate Code in its analysis. Although the trial
         court explained that its interpretation of the language in the Hubbell Family
         Trusts was consistent with the Uniform Probate Code, it did not rely on
         that code in reaching its conclusion. Furthermore, although we recognize
         that Connecticut has not adopted the Uniform Probate Code, and that courts
         of this state are not bound to follow it, it is useful, persuasive authority in
         this context.
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                                Schwerin v. Ratcliffe

          erty is divided into as many equal shares as there are
          (i) surviving children of the designated ancestor and
          (ii) deceased children who left surviving descendants.
          Each surviving child, if any, is allocated one share. The
          share of each deceased child with surviving descen-
          dants is divided in the same manner, with subdivision
          repeating at each succeeding generation until the prop-
          erty is fully allocated among surviving descendants.’’
          Unif. Probate Code § 2-709 (c) (amended 1993), 8 U.L.A.
          316 (2013).
             The plaintiffs and Campion assert that the trial court
          incorrectly concluded that the grantors intended for the
          stirpital roots to be established at the generational level
          of the children because the Hubbell Family Trusts both
          provide for the principal to be distributed to the grant-
          ors’ issue ‘‘then living . . . .’’ Specifically, Campion
          asserts that the phrase ‘‘then living’’ is used to modify
          the term ‘‘issue,’’ meaning that the grantors intended
          the initial division of each trust to be to the issue living
          at the termination of the trust, and, because all three
          children of Harvey Hubbell III are measuring lives of
          each trust, the grantors could not have intended for the
          initial division to be at the level of the children. We
          disagree.
              The use of the term ‘‘then living’’ does not alter the tes-
          tators’ intention for per stirpes distribution of the trust
          principal. Instead, the term ‘‘then living’’ is used to iden-
          tify those who receive a distribution under the Hubbell
          Family Trusts. In other words, the use of the term ‘‘then
          living’’ does not modify the method of distributing the
          trust principal but merely conditions the receipt of a
          distribution from those trusts on surviving their expira-
          tion. See 3 Restatement (Second), supra, § 28.2, p. 254
          (‘‘[i]f a gift is made to a class described as the ‘issue’
          or ‘descendants’ of a designated person, or by a similar
          multigenerational class gift term, in the absence of addi-
          tional language or circumstances that indicate other-
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        OCTOBER, 2020                        319
                               Schwerin v. Ratcliffe

         wise, (1) [a] class member must survive to the date of dis-
         tribution in order to share in the gift; and (2) such class
         member in order to share in the gift must have no living
         ancestor who is a class member’’); see also, e.g., Travis
         v. Wolcottville School Society, 

, 631–32,
         

 (1931) (language in will bequeathing gift
         to beneficiary ‘‘ ‘if living’ ’’ at time of death of testator’s
         wife ‘‘conditioned the gift upon the survival of the bene-
         ficiary after the death of the testator’s wife’’). The com-
         mentary to the Restatement (Second) explains: ‘‘If a gift
         is made to the ‘issue’ or ‘descendants’ of a designated
         person, in the absence of additional language or circum-
         stances that indicate otherwise, the initial division of
         the subject matter is made into as many shares as there
         are issue, whether living or not, of the designated per-
         son in the first degree of relationship to the designated
         person.’’ (Emphasis added.) 3 Restatement (Second),
         supra, § 28.2, comment (b), p. 255.
           The appellate courts of this state have not addressed
         the precise impact that the phrase ‘‘then living’’ has on
         per stirpes distribution, but we find a Massachusetts
         Appeals Court case instructive. In Bank of New England,
         N.A. v. McKennan, 19 Mass. App. 686, 

,
         review denied, 

, 

 (1985),
         the court addressed ‘‘whether the phrase ‘according to
         the stocks’ in [a trust], when applied to the distribution
         of the trust principal to the testator’s ‘issue then living,’
         calls for the stocks to be the three children of the
         testator . . . or to be the nine grandchildren of the
         testator . . . .’’ Id., 688.
            The court reasoned that, because the testator had
         included the term ‘‘ ‘according to the stocks,’ ’’ which
         it interpreted to mean per stirpes, the testator had
         intended his children to be the heads of the respective
         stirpes. Id., 688 n.1, 689–91. Accordingly, the court con-
         cluded that ‘‘the testator provided for an income distri-
         bution by which the grandchildren took only propor-
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          320                         OCTOBER, 2020                  

                                       Schwerin v. Ratcliffe

          tional shares of what their individual parents had, rather
          than equal shares.’’ Id., 690. Similar to the Hubbell Fam-
          ily Trusts in the present case, the trust at issue in Bank
          of New England, N.A., provided for the children to be
          measuring lives. See id., 687. Therefore, like the children
          in the present case, the children in Bank of New England,
          N.A., could never receive gifts under the trust but were
          still the stirpital roots for the per stirpes division. See
          id., 691.

             It is important to note that the Massachusetts intes-
          tate statute would not have provided for a per stirpes
          distribution but would have provided, instead, that each
          grandchild take a share of the trust principal per capita.
          See Mass. Ann. Laws c. 190, §§ 2 through 4 (Law. Co-
          op. 1981).15 Nevertheless, the Massachusetts Appeals
          Court concluded that the testator’s use of the phrase
            15
                Mass. Ann. Laws c. 190, § 2 (Law. Co-op. 1981), provides: ‘‘The personal
          property of a deceased person not lawfully disposed of by will shall, after
          the payment of his debts and the charges of his last sickness and funeral
          and of the settlement of the estate, and subject to the preceding section
          and to chapter one hundred and ninety-six, be distributed among the persons
          and in the proportions hereinafter prescribed for the descent of real
          property.’’
             Mass. Ann. Laws c. 190, § 3 (Law. Co-op. 1981), provides in relevant part:
          ‘‘When a person dies seized of land, tenements or hereditaments, or of any
          right thereto, or entitled to any interest therein, in fee simple or for the life
          of another, not having lawfully devised the same, they shall descend, subject
          to his debts and to the rights of the husband or wife and minor children of
          the deceased as provided in this and in the two preceding chapters and in
          chapter one hundred and ninety-six, as follows:
             ‘‘(1) In equal shares to his children and to the issue of any deceased child
          by right of representation; and if there is no surviving child of the intestate
          then to all his other lineal descendants. If all such descendants are in the
          same degree of kindred to the intestate, they shall share the estate equally;
          otherwise, they shall take according to the right of representation. . . .’’
             Mass. Ann. Laws c. 190, § 4 (Law. Co-op. 1981), provides: ‘‘Degrees of
          kindred shall be computed according to the rules of the civil law; and the
          kindred of the half blood shall inherit equally with those of the whole blood
          in the same degree.’’
             Mass. Ann. Laws c. 190, §§ 2 through 4 (Law. Co-op. 1981), is now codified
          as amended at Mass. Ann. Laws c. 190B, § 2-103 (LexisNexis 2011).
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       OCTOBER, 2020                       321
                              Schwerin v. Ratcliffe

         ‘‘ ‘my issue living on the quarterly payment days . . .
         according to the stocks’ ’’ was sufficient to rebut the
         presumption of the state’s intestate statute and provide
         for per stirpes distribution of the trust principal with
         the children of the testator as the stirpital roots. Bank
         of New England, N.A. v. 

 19 Mass.
         App. 688–90.
            In reaching its conclusion, the Massachusetts Appeals
         Court also explained that its determination that the
         children should serve as the stirpital roots is consistent
         with other language in the trust because the terms of
         the trust did not single out the grandchildren of the tes-
         tator. See 

 690–91. Specifically, that court explained:
         ‘‘[T]he will as a whole manifests no intention to single
         out the testator’s grandchildren as deserving of equal
         or special treatment. Indeed, [a]rticle [s]even [of the
         will] does not even mention the grandchildren individu-
         ally or as a class. Rather, it expresses itself solely in
         terms of the testator’s ‘issue,’ who are to receive both
         the income of the trust while at least one of the testator’s
         children is alive and the principal of the trust upon the
         death of the last child. Nor is the term ‘issue’ restricted
         to grandchildren. To the contrary, by definition in the
         will, the term includes both ‘children’ and all ‘lineal
         descendants to the remotest degree.’ In view of the tes-
         tator’s omission of any express reference to his grand-
         children, which would have been easy to provide had
         it been desired, it can be inferred that the testator was
         concerned, not with providing specifically for them, but
         for his ‘issue’ as a whole, according to the stocks from
         which they came, i.e., his children.’’ (Footnote omitted.)
         

            Because the language of the will at issue in Bank of
         New England, N.A., is substantially similar to the lan-
         guage of the Hubbell Family Trusts, we find the reason-
         ing of that case persuasive. Specifically, like the will at
         issue in that case, the Hubbell Family Trusts do not
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          322                        OCTOBER, 2020                  

                                      Schwerin v. Ratcliffe

          single out the testators’ grandchildren as the beneficiar-
          ies individually, instead providing for the division of
          the trust principal among the testators’ ‘‘issue’’ as a whole.16
          It is noteworthy that the Massachusetts Appeals Court
          held as it did in Bank of New England, N.A., because
          its conclusion was contrary to the intestate statute in
          Massachusetts, which provided for a per capita distri-
          bution. See Mass. Ann. Laws c. 190, §§ 2 through 4 (Law.
          Co-op. 1981). The reasoning of the Massachusetts Appeals
          Court in Bank of New England, N.A., is even more persua-
          sive in the present case because our conclusion regard-
          ing the proper method for distributing the principal of
          the Hubbell Family Trusts is consistent with the intes-
          tate statutes of this state, which would require the chil-
          dren to be the stirpital roots. See General Statutes §§ 45a-
          438 (a) and 45a-439.
            The plaintiffs and Campion also assert that constru-
          ing the Hubbell Family Trusts such that the children
          are the heads of the respective stirpes is inconsistent
          with the terms of those trusts as a whole because they
          provide for the children and the two grandchildren of
          Harvey Hubbell III to be measuring lives, and, therefore,
          the children can never be beneficiaries under the Hub-
          bell Family Trusts. In support of their position, the
          plaintiffs and Campion point to a number of cases from
          this jurisdiction for the proposition that, if a testator
          excludes the children as beneficiaries under the trust
          and directs the gifts to the grandchildren, then the chil-
          dren cannot receive the gifts as representatives of their
          parents. We find these cases inapposite.
            In the cases on which the plaintiffs and Campion rely,
          the trust document directs the gift to a particular class
          or group of persons, rather than to the more general
            16
               Although the Hubbell Family Trusts do single out some of the grandchil-
          dren of Harvey Hubbell III as measuring lives, neither of the trusts singles
          out the grandchildren individually or as a class for purposes of naming benefi-
          ciaries.
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       OCTOBER, 2020                       323
                              Schwerin v. Ratcliffe

         class of ‘‘issue.’’ See, e.g., Hartford National Bank &
         Trust Co. v. 

 (‘‘[u]pon
         the death of my said children and of my said grandchild
         said trust shall terminate, and I do then give, devise
         and bequeath said the rest, residue and remainder of
         my estate to their children, if any they have, as a class,
         to be divided among them per stirpes, share and share
         alike, to them and to their heirs forever’’ (internal quota-
         tion marks omitted)); Hartford-Connecticut Trust Co.
         v. Beach, 

, 356–57, 

 (1924) (‘‘the
         remaining principal of the general share or parcel at
         the beginning of this [s]eventh article mentioned shall
         be distributed equally to all my grandchildren and the
         issue of such deceased grandchildren as may be born
         during my lifetime, if any, they to take per stirpes and
         not per capita’’ (internal quotation marks omitted)).
         These cases are inapplicable here because the Hubbell
         Family Trusts do not name a particular class to receive
         the gifts.
           Similarly, the plaintiffs and Campion rely on § 301 of
         the Restatement of Property to support the position
         that the stirpital roots should be at the first generational
         level with members still living when the trust termi-
         nates. We disagree.
            Section 301 of the Restatement of Property applies
         ‘‘[w]hen a conveyance creates a class gift by a limitation
         in favor of a group described as ‘B and his children,’
         or as ‘B and the children of C,’ or as ‘children of B
         and children of C,’ or by other words similarly limiting
         property to one or more named persons plus one or
         more described groups, or to two or more described
         groups, and the membership in such class has been
         ascertained in accordance with the rules stated in
         §§ 285–299 . . . .’’ 3 Restatement, supra, § 301, pp.
         1640–41. As we have explained, the language in the
         trusts in the present case makes a gift to the grantors’
         issue, generally, rather than to a more specific, particu-
         lar class of people. Therefore, we conclude that § 303
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          324                 OCTOBER, 2020            

                               Schwerin v. Ratcliffe

          of the Restatement of Property is applicable to the lan-
          guage in the Hubbell Family Trusts because, as pre-
          viously noted, that section applies ‘‘[w]hen a convey-
          ance creates a class gift by a limitation in favor of a
          group described as the ‘issue of B,’ or as the ‘descen-
          dants of B,’ and the membership in such class has been
          ascertained in accordance with the rules stated in
          §§ 292 and 294–299 . . . .’’ 3 id., § 303 (1), p. 1655.
            Although we agree with the plaintiffs and Campion
          that, under the terms of the Hubbell Family Trusts,
          the children and some of the grandchildren of Harvey
          Hubbell III who are named as measuring lives can never
          be beneficiaries under those trusts, that fact does not
          preclude the children from being the stirpital roots.
          Indeed, our conclusion is consistent in this regard with
          that of the Massachusetts Appeals Court in Bank of
          New England, N.A. v. 

 19 Mass. App.
          688–91, which concluded that the testator’s children
          were the stirpital roots for the per stirpes division, even
          though they could never receive gifts under the trust.
             The plaintiffs and Campion also rely on a number of
          cases from New York to support the position that the
          stirpital roots should be at the highest generational level
          having any members still living at the time the Hubbell
          Family Trusts terminate. Campion asserts that New
          York’s proximity to Connecticut would make New York
          law on the subject especially persuasive because attor-
          neys in Connecticut, particularly those practicing in
          Fairfield county, would be familiar with New York law
          and would consider it when drafting trusts in Connecti-
          cut. We disagree.
             First, it is undisputed that the Hubbell Family Trusts
          explicitly provide that they are governed by Connecticut
          law. Second, it is well established that New York law
          differs significantly from Connecticut law regarding per
          stirpes distribution. The consolidated laws of New York
          provide in relevant part: ‘‘A per stirpes disposition or
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       OCTOBER, 2020                       325
                              Schwerin v. Ratcliffe

         distribution of property is made to persons who take
         as issue of a deceased ancestor in the following manner:
         The property so passing is divided into as many equal
         shares as there are (i) surviving issue in the generation
         nearest to the deceased ancestor which contains one
         or more surviving issue and (ii) deceased issue in the
         same generation who left surviving issue, if any. Each
         surviving member in such nearest generation is allo-
         cated one share. The share of a deceased issue in such
         nearest generation who left surviving issue shall be
         distributed in the same manner to such issue.’’ 

 (McKinney 2012).
         Therefore, New York law explicitly provides that the
         number of shares in the initial division of an estate is
         to be based on the number of issue surviving at the
         time of distribution. This law is wholly inconsistent with
         Connecticut’s intestate statute, which provides that the
         number of shares in the initial division of an estate,
         after distribution is made to a surviving spouse, is to
         be based on the number of children of the decedent,
         regardless of whether the children are dead or alive.
         See General Statutes § 45a-438 (a) (‘‘[a]fter distribution
         has been made of the intestate estate to the surviving
         spouse in accordance with section 45a-437, the residue
         of the real and personal estate shall be distributed
         equally, according to its value at the time of distribution,
         among the children, including children born after the
         death of the decedent . . . and the legal representa-
         tives of any of them who may be dead’’).
            In addition to the choice of law provisions in the
         Hubbell Family Trusts, the difference between the per
         stirpes method of distribution in the applicable New
         York statute and the method of distribution in the appli-
         cable Connecticut statute makes the New York cases
         cited by Campion inapplicable in the present case. It
         is axiomatic that, in Connecticut, ‘‘in the absence of
         words indicating a contrary intent, a will is to be inter-
         preted as intending to distribute an estate per stirpes,
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          326                 OCTOBER, 2020            

                               Schwerin v. Ratcliffe

          and in accordance with the [Connecticut] statute of
          distributions.’’ Close v. 

.
             Campion also asserts that the trial court improp-
          erly considered Restatement (Second) of Property and
          Restatement (Third) of Property because neither one
          was in existence at the time the Hubbell Family Trusts
          were drafted and, therefore, was not available to the
          testators or their attorneys. We disagree that reference
          to these Restatements was improper. Restatements of
          the law seek to compile and distill the common law that
          exists. When seeking to ascertain the testator’s intent
          in a particular testamentary instrument, we have never
          limited our review to only cases decided prior to the
          execution of the instrument. Indeed, a review of our case
          law reveals that this court routinely refers to Restate-
          ments that were published after the testamentary instru-
          ment was executed. See, e.g., Hartford National Bank &
          Trust Co. v. 

, 504–505 (citing
          to volume 3 of Restatement of Property, which was pub-
          lished in 1940, to interpret will executed in 1916); Warren
          v. First New Haven National Bank, supra, 

,
          126–27 (citing to volume 3 of Restatement of Property,
          which was published in 1940, to interpret will executed
          in 1937). Because Restatements are compilations of the
          common law, we see no reason to treat them differently.
          Accordingly, we conclude that it was not improper for the
          trial court to rely on volume 3 of the Restatement (Second)
          of Property, which was published in 1988, and volume 1
          of the Restatement (Third) of Property, which was pub-
          lished in 1999, to construe the trusts in the present case
          that were executed in 1957.
             On the basis of the foregoing, we conclude that the trial
          court properly granted the defendants’ motions for sum-
          mary judgment and rendered judgment declaring that,
          at the expiration of the term of the Hubbell Family Trusts,
          the principal of those trusts should be distributed such
          that each child of Harvey Hubbell III shall be the head
          of each stirpe.
The judgment is affirmed.
In this opinion the other justices concurred.