| Conn. | Oct 22, 1819
The words used by the testator, having a plain sense, and leading to no absurd conclusion, must be the standard, by which his intention is to be estimated. The trust created, extended not merely to the dividends arising on his stock, but to the stock itself. The money to be collected by the trustee, was to form a part of what the testator, very inaptly, thought proper to. call a family fund. That he was to have, not only the possession of, but the legal estate in this, seems not to have been questioned. Although he was to receive the dividends and payment on the stock, by express appointment, even this bequest would be nugatory, if he were not vested with the legal right to the stock, that he might call for the increment arising upon it. Besides, he was to divide it; which he never could do, unless he had the right of possession, and power of distribution. To effectuate the manifest intent of the testator, the construction, that in the stock, as well as in the other personal estate, the trustee was to have the legal property, is perfectly indispensible.
The enquiry, then, arises, and this is the principal question, when was the stock to be distributed ? I answer, immediately after the payment of the legacies, and the formation of the fund. The testator’s wife was to have two eleventh parts, during her widowhood; and if the property should cease to be hers, it was to remain to his children. A speedy distribution, it is obvious, was contemplated. It was believed, by the testator, that a part of his éstate might be vested in his widow; and during her life, that is, should she marry, that it would enure to the children. The expression, family fund, is ill adapted to this construction ; but it would be unreasonable to lay such stress on this phrase, as to render it inconsistent with the intention of the testator, clearly resulting frcftn other parts of the will.
It is contended by the defendant, that the trust was interminable, and that the interest alone was to be annually paid to the cestuy que trusts. This construction is in direct hostility with the distribution of the property, contemplated as possi
The defendant has refused to render his account to the plaintiffs, and to divide the property in his hands; and it is claimed in his behalf, that the plaintiffs have adequate remedy at law. The.answers made to this suggestion, are obvious and convincing. It is demonstrably clear, on the construction I have given the will, that the plaintiffs are entitled to a distribution of the bank shares specifically ; and that the jurisdiction of chancery is necessary .for this purpose. The probate court can compel the éxecutor to diseharge his duty as such ; but in relation to the property subjected to the trust, it effectually appears, that he has done it, -from the fact, that it is in his possession as trustee under the will. Over the defendant, in that capacity., the probate court has no control-
Further, the plaintiffs demand a discovery. They aver, “ that there has also come into the defendant’s hands and possession other property, received from book-debts, and other sources, a large sum, of which the plaintiffs have no account, and which they are not able to prove, otherwise than by the oath of the said Payton R. Gilbert." To this the defendant replies, that oh the day when he accepted the trust of executor, he made a true and perfect inventory of all the estate of the deceased, according to law. This averment is not opposed to the^allega tion of the plaintiffs. The notes, bonds, and debts of the ¡deceased may be, and probably were, inventoried ; but the avails of them, a posterior fact, are the subject pf the plaintiffs’ claim. There is no ground for the supposition, that the plaintiffs are able, independently of the defendant’s oath, to prove the facts which they have averred. If the defendant is bound to .make discovery, and of this there ex
In result, it is apparent, that the plaintiffs have no adequate remedy at law, and that they have right to the remedy sought. I would, therefore, advise the superior court, that the demurrer to the defendant’s plea be sustained.
Decree to be made accordingly.