31 Conn. 225 | Conn. | 1862
The late distinguished Judge Swift died in 1823, leaving six children, one of whom, the present petitioner, owing to physical incapacitjr, was unable to provide for himself. He made a will, by which, after making a suitable provision for his widow, he secured a home for the petitioner in the testator’s dwelling house, and gave him a legacy of three hundred dollars in money. Subject to these and some other small bequests, he gave the residue of his estate to be divided among the other five children, on condition that they should annually pay an equal part and proportion of such sum as might be necessary for the support of the petitioner “ in food, drink, clothing, firewood and medicine, in sickness and in health, during his natural life.” The will then provided that in case any dispute should arise respecting the amount of the support, the selectmen of the town of Windham for the time being should have power to decide and ascertain what should be annually paid for his support; and that if either of the five devisees should neglect to pay their portion of such necessary support, or such sum as the selectmen should determine as the amount to be paid annually, the said Henry should have full power to enter upon the land of such devisees neglecting, as should be set off to them as part of the estate, and to hold the same till the sum due for his necessary support should be paid.
To this the respondents object, claiming that he has had opportunity to obtain it by the award of the selectmen.
We think this objection can not be sustained, for several satisfactory reasons.
In the first place, by the terms of the will the devisees under the will were to pay such sum as might be necessary for the support of the petitioner. If he and they could not agree, the selectmen of Windham might fix the amount. The obligation was on them to furnish the support at all events. They could in a certain contingency have the amount ascertained by the selectmen and then tender that sum. But this they have not done. It is no answer to this to say that lie- declined such an adjustment. If they had the right to have the action of the selectmen, on giving him proper notice they could have proceeded in the same manner as if he had given his assent.
In the next place, it does not appear that he had an opportunity to meet all the parties in interest before the selectmen. The will speaks only of the devisees. If it is assumed that the owners of the property succeeded to their rights, the petitioner had the right to enter on all or any part of the land devised. But no application was made to the selectmen except by the owners of particular portions of the land, to which the devisees had attempted without the consent of the petitioner to limit the lien. It would seem to be no more than just, that if the owners of the rest of the land were to be bound by the award, they should have an opportunity to be heard, since he could not, in case of his failure to receive his support, be deprived in this way of his right to enter on any portion of the devised premises.
But the principal question which has been discussed in this part of the case is, whether he was bound to abide by the action of the board of selectmen as it was then constituted. We think he was not. Judge Swift had not specified any individuals by name, as those by whom he wished the amount
It has been strongly urged in the next place, that the petitioner has adequate remedy at law, and therefore this petition ought to be dismissed. At first sight this point presents a graver question than the other. The will provides that if either of the devisees, naming them, “ shall fail and neglect to pay their part and proportion of such necessary support, or such sum as said selectmen shall determine,” the petitioner shall have the right “ to enter upon the land of such of my children neglecting, as shall be set off to them as part of my estate, and to hold and possess the same till the sum due for his necessary support shall be paid.” This right to enter and obtain his support in that way, it is insisted is an adequate remedy. We think it is not. It has been repeatedly held by this court, following a series of decisions in courts of chancery elsewhere, that to oust such a court of jurisdiction, there must not only be a remedy at law, but an obvious, adequate and complete remedy. Chipman v. City of Hartford, 21 Conn., 488; Middletown Bank v. Russ, 3 id.,
The petitioner was entitled to his money, and not merely to the occupation of land, requiring his labor and care. Why can a mortgagee bring a petition to foreclose ? He has the right to enter on the mortgaged premises, and occupy them till he gets his pay. His remedy at law is more obvious and adequate than that of the petitioner. But he is held to be entitled to the aid of a court of chancery, because he is entitled to have his debt paid, or have an indefeasible title to the mortgaged premises. The mortgage is given, not as an eqivalent for the money, but merely to secure the fulfillment of the obligation entered into by the mortgagor. The analogy between such a case and the present one is striking.
But the petitioner has still stronger claims than are usually presented by a mortgagee. In the case of a mortgage, the amount to which the mortgagee is entitled is generally fixed by the parties. But in the present case, since the will took effect, a large number of individuals, without any action on the part of the petitioner, have become interested in the amount to which he is entitled. He on the other hand has had greater difficulties interposed to his entry upon and enjoyment of the property. The will evidently proceeds on the ground that the devisees were to retain the possession of the property. If any one of them failed to pay, the petitioner could enter on his portion, and one entry would be enough for the whole portion. But the share of this devisee may now be divided among and occupied by half a dozen individuals. To ascertain how much the land of any one of them is to be charged with, it is necessary to know how much the share of each devisee would be, and that would depend on the amount of the whole support. The owners of the land have equitable rights between themselves, which would ultimately require the interposition of a court of equity, and an objection to this petition does not come from them with a very good grace.
The petitioner, in order to enjoy his full rights at law, would be obliged to bring a large number of actions of ejectment, rendering his remedy by that mode not only very doubtful
There is manifest error in the judgment of the superior court dismissing the bill, and the judgment is reversed.
In this opinion the other judges-concurred.