22 Conn. 462 | Conn. | 1852
Two questions are presented in this case: 1.
Whether John Hemingway, second, by the true construction of the will of his father, acquired a devisable interest in the land therein devised to him ; 2. If he did, whether, by his own will, he devised that part of it which was not sold, by order of the legislature, and also the avails of the other part.
1. The first of these questions depends entirely on the import and effect of the terms of the two devises to him, in his father’s will, since the construction of that instrument is not affected, by any. extrinsic facts. His father gives, in the first of these devises, certain lands to the said John, in severalty, and, in the second, certain other lands, to him and his brother jointly. There is no doubt that, independent of the restrictive provision which is added to these devises, they convey a fee simple in those lands, to the said John. We are, therefore, brought to examine that provision, with a view of determining how far it changes or modifies them. By it, the testator appoints three persons, therein named, designating them “ as trustees,” to take into their care, all the property given in his will, to his said son, and then declares, that he may be allowed the improvement, by the consent of those persons; but that the property must not be disposed of, without it is absolutely necessary for his com
The claim, that a trust is created in these appointees, implies necessarily, that they are invested with the legal estate. But there is no devise to them, of such an estate ; and therefore, if it exists, it might be inferred, as a matter of intention, from the nature of the powers conferred by the provision in question, on them, in connection with the restriction imposed on the said John. It provides, first, that they may take into their care, all the property devised to him, and that he may be allowed to improve it, by their consent. We think that the meaning of this provision is, that these appointees are to be invested with the power of overseeing the said John, in regard to the improvement of the property, and of advising, and perhaps of directing him, as to the manner in which it shall be used ; and that, if, in their judgment, it would be proper, they might permit him to improve it, without their advice or direction. No argument is necessary, to show that such an authority, given to these persons, neither makes it necessary, nor implies, that they should have the legal title to the property. It neither creates a trust, nor an office or agency of that nature. Nor does it invest those persons with any interest or estate in the property, legal or equitable. Treat v. Peck, 5 Conn. R.,
2. We think that, by the true construction of the devise, in the will of John Hemingway second, it embraced all the property of which he died the owner, and that the word “ possessed,” was used in it, to denote ownership, and not merely personal or corporal occupation. Therefore, the portion of the property devised to him by his father, and which he retained, until his death, and also the avails belonging to him, in the hands of his brother, of that part of it which was sold, under the resolution of the legislature, passed by his will to his devisees.
We therefore advise the superior court, to affirm the decree from which this appeal is taken.
In this opinion, the other judges concurred.
Decree affirmed.