32 Conn. 342 | Conn. | 1865
This is an action of disseizin, to recover a tract of land or an undivided portion thereof, situated in Danbury. The defendant denies any title to the land in the plaintiff, and also denies that he has ousted the plaintiff if she had any title.
We do not deem it necessary to discuss the question of ouster. We are satisfied that if the plaintiff had a legal title to the premises she is entitled to recover.
The only question which creates any serious difficulty in the case arises out . of the will of Andrew Akin, who, it is admitted, had at his decease an exclusive title to the demanded premises. The testator, by his will dated December 16th, 1823, gives the use of one half his real estate to his widow for life. He then gives one quarter of his estate, that
“Incase my said son John should die before my said daughter Betty, then my will is that my said daughter shall have that part of my property herein before given in trust for the benefit of my said son John, and if my said daughter should die before my said son, then my will is that that part of my property herein before given to my said daughter, shall be taken by my said brother David Foot,in trust for the benefit of my said son, and be used and applied in the same manner as is herein before provided for that part of my property given in trust for the benefit of my said son.”
David Foot declined to serve as trustee, and Eli Akin was lawfully appointed by the judge of probate for the district of Danbury in his place. Betty Akin died July 21,1860 ; John Akin in October, 1861. On the 9tli day of May, 1854, Eli Akin, assuming to act as trustee both of John and Betty Akin, sold the land in question without any reservation to Susan Knapp, under whom the defendant claims title. It is admitted that the plaintiff is heir at law to one half of John Akin’s estate, so that if John at his death had any title to the land in question she is entitled to recover one half of it in this action.
There is no claim that Eli Akin was ever trustee of Betty Akin. As trustee of John he seems to have acted on the supposition that as John in a certain contingency would take Betty’s share, he could as trustee of John, Qand as he conceived under such circumstances of Betty also, dispose of the whole property. It is unnecessary to controvert such an idea. If when the deed was given John’s title to her part was wholly contingent, evidently Eli Akin’s deed, however legal in other respects, would not convey it. By a reference to the clause of the will which has been quoted, John’s right in Betty’s estate was a contingent remainder. On well settled
But’the plaintiff claims to recover more than the undivided fourth part of the premises, insisting that Eli Akin as trustee had no power to dispose of John’s absolute interest in them and that his deed did not convey such title.
This question will depend on the true construction of the fourth clause of Andrew Akin’s will, which is as follows:— “ All the rest and residue of my property, both real and personal, I give, bequeath and devise to my brother, David Foot, in trust, for the benefit of my son John, and my will is that said trustee shall rent that part of my real estate hereby given in trust as aforesaid, to the best advantage, and convert that part of my personal estate, herein given in trust as aforesaid, into money, and put the same at interest, and apply the annual interest of said money and the annual rents of said real estate to the support,, comfort and convenience of my said son, from time to time, as he shall in the opinion of said trustee need the same; and if my said son should by misfortune be placed in such circumstances as in the opinion of said trustee to need or require for his comfort and support more than the interest of said money and said rents, then my desire is that said trustee shall apply to my said son’s use, from time to time, and at all times, such part and so much of that portion of property herein given in trust as aforesaid, as shall in the sound discretion of said trustee be proper for the- purpose aforesaid ; and in case of the decease of my said brother before the decease of my said son, then my will is that the judge of the court of probate for the district of Danbury, for
The plaintiff insists that, before the trustee coxild dispose of the property, he was bound to convert the personal estate into money and put it at interest, and to rent the real estate, and to apply the annual interest and the rent to the support of John, and if that was insufficient, then and then alone he could sell the land. Instead of pursuing this course he applied the personal property to his own use, and occupied the land himself. He however was at all the expense of John’s board, clothing, &c., and the court finds that lie did more for John than the personal estate and the rent of the real estate woxild have amounted to. The claim of the plaintiff on this point .is too technical, harsh and xxnreasonable to
The plaintiff must therefore recover an undivided half of the interest of Betty, that is, an undivided quarter of the demanded premises, and no more.
In this opinion Butler and McGurdt, Js., concurred. Hinman, O. J. and Park, J., did not sit.
Note. The deed of Eli Akin to Susan Knapp was executed by him as trustee, but did not state his authority to sell, or that he deemed it necessary and proper to sell, and, except as it described the grantor as trustee of John and Betty Akin, was in all respects like an ordinary warranty deed. It was contended upon the argument by the plaintiff's counsel that the deed was inoperative by reason of these omissions, but as the court upheld the deed, although not remarking upon this objection, it is to be inferred that it was held to be good. R. ,