36 Conn. 18 | Conn. | 1869
The petitioner obtained judgment against Al-bert W. Goodwin, and levied his execution upon land devised to the respondent in trust for Goodwin, and set off the .same in part satisfaction of his claim, and now brings Ms petition to obtain the legal title to the land set off, and the rents, profits and issues of the same. Whether the prayer of his petition should be granted or not depends upon the question whether or not Goodwin was the equitable owner of some vested interest in the land devised, and this depends upon the construction that should be given to the will of Abigail Goodman, late of Hartford, deceased.
Goodwin was indebted to the petitioner in a large amount at the time the will was made, much larger that the value of all the property devised to the trustee, and it is manifest that the testatrix designed that no part of her property should toe taken by the petitioner in satisfaction of his claim. Goodwin was the special object of her bounty, and she intended that whatever property she should leave for his benefit should be enjoyed by him in person, and should never be liable to attachment and execution at the hands of his creditors. To this end she sought by the aid of counsel to devise a mode whereby this object could be accomplished, and the result is before us.
Whether she has been~successful is the question at issue. We fully agree with the counsel for the petitioner, that if an equitable or legal interest in land is devised, and it becomes vested in the devisee, it is subject to all the incidents of ownership in his hands, and may be taken by creditors, as freely as any other property of the debtor, although the testator may have strongly expressed his intent to the contrary. But the intent of a testator in this respect is an important consideration in a doubtful case, iu determining whether, -in
The next clause provides that the rents, use and benefit of the land shall be paid annually, either to Goodwin in person, or to his written order. If the land was designed to be Goodwin’s why provide that the rents and profits shall be paid annually ? They would be his to all intents and purposes when due, without such provision.
Again, if the land was designed to be Goodwin’s, it is remarkable indeed, and past comprehension, that the testatrix should be so desirous to secure the issues of the land to his personal enjoyment and leave the land itself exposed to creditors without an effort for its preservation.
The land is the principal thing. Should creditors take the land they would inevitably take the rents and profits of the land with it. Taking the land would take the issues of the land. If therefore she intended to givo the beneficial interest in the land to Goodwin would she have left it so exposed, and with it the rents and profits that she endeavored with so much concern to secure to him, and especially when aided by counsel in her efforts ?
We think it is clear that she never intended, to bestow upon him an interest in the land itself, but only in the rents and profits of the land; and we see nothing in the language
We think the clauses following the first clause of the devise qualify the language used in the first clause, and show that the legal title of the land was devised to the trustee merely to enable him to manage the estate and collect the rents and profits of the land and pay them annually to the cestui que trust; and likewise to provide a fund in the rents and profits for his support. The petitioner levied his execution upon the land. If therefore his debtor had no vested interest in the land as such his levy was a failure, and the prayer of his petition that the legal title of the land be conveyed to him cannot be granted.
In relation to the interest of the cestui que trust in the devise in question, we think he took a vested life estate in t he rents and profits of the land. The rents and profits are to be paid to him annually. The trustee has no discretionary power of appropriation. The trust is unlimited as to time. It therefore must continue during the life of the cestui que trust, for at no time preceding his death can it be said that the object of the trust has been accomplished. The case is similar to the case of Farmers & Mechanics’ Savings Bank v. Brewer, 27 Conn., 600, where it appeared that a testatrix gave certain property in trust that the income of the estate should be paid by the trustee to the cestui que trust semiannually, on the first days of January and July during his natural life, with remainder over; it was held that the cestui que trust took a vested life estate in the income. The case at bar is similar in principle. In both cases the income is given. In both the trust is to continue during the life of the cestui que trust. In both the trustee has no discretionary power to withhold the income when the time arrives for payment. It is true that in the case under consideration the trustee may require the written order of the cestui que trust before he can be compelled to pay the income, but this can make no difference with the ownership of the income. In the case of Arden v. Goodacre, 10 Eng. Law & Eq. R., 468, where a testator bequeathed an annuity to his son, payable
The clause in the devise, that-the rents and profits shall in no case enure to the benefit of the creditors of Goodwin, can have no effect. If the income was his, it was his for all purposes, like any other property. The testatrix should have conferred upon the trustee discretionary power of appropriation, if she desired to deprive the cestui que trust of ownership of the rents and profits before they should be paid to him. Johnson v. Connecticut Bank, 21 Conn., 148.
This was not done in this case. The trustee has no discretionary power to exercise, further than to require a written order, which, as we have seen, does not affect the ownership of the .income. In this state of things the petitioner claims that, although he acquired no interest in the rents and profits of the land by the levy of hig execution, still the rents and profits remaining unpaid to the cestui que trust, and those that shall thereafter accrue during the life of the cestui que trust, or till his debt is paid, should be paid to him, in part or in whole satisfaction of his claim, as the case may be ; and that a decree should be passed accordingly. The petitioner has acquired no right to the possession of the land, for his debtor has no interest in the land, and consequently has no right to the possession. The relation of the petitioner to the rents and profits therefore does not differ in any respect from that of any other creditor of the cestui que trust, or from that of any creditor to the funds of his debtor in the hands of
We deem this statement of our views a sufficient answer to all the questions submitted to our consideration, and therefore will not answer them in detail.
The Superior Court is advised to dismiss the petition.
In this opinion the other judges concui’red.