9 Conn. Supp. 11 | Conn. Super. Ct. | 1940
Because of the number of claimants and the multiplicity of legal questions caused thereby, it became desirable to procure a transcript of the proceedings before the court held the last Friday in June. Due to vacations this transcript was not procurable from the stenographer's office until the latter part of August, and hence the postponement in decision.
None of the parties filed a remonstrance and out of the conflicting claims I have endeavored to resolve the conclusions based on the committee's report. Under section 176 of the Practice Book (1934) the court, in the absence of a remonstrance, may either accept the report, or take such other action as may be determined proper.
In view of the arguments of counsel such questions as remained open will be disposed of as questions of law, so as to admit of an acceptance of the committee's report.
This is the law governing assignments in Connecticut. What law then governs the assignments in this case? It can hardly be claimed that viewed as contracts they were completely executed outside the State in the light of Craig Co., Ltd.vs. Uncas Paperboard Co.,
Under Conclusion A of the committee's report these so-called Russo assignments are declared to be invalid "unless it is held by the Court as a matter of law that Lewis M. Osterweis, prior to reaching the age of thirty-five had a right to the income of the trust fund which he could alienate or assign." This trust ceased to be a spendthrift trust when Osterweis became thirty-five. Before that time he had no interest in the trust fund, so far as accumulations were concerned, but that is not to say that the assignments would not operate in futuro, as to income accruing after he became thirty-five and that is the construction which I conclude should be given to the so-called Russo assignments. The situation is to be distinguished from Bridgeport-City Trust Co. vs. Beach,
The result of this construction, however, is not to give them priority, because as to them notice was not given in a reasonable time, but simply gives the assignee an equitable interest against all persons except those having superior equities.Travelers Ins. Co. vs. Mayo,
This brings us to the disputed interpretation of the fifth paragraph of the agreement of reduction by which Celia Merwin made an assignment to Ruth Osterweis in language which raises the question on this claim and is therefore quoted, as follows: "50% of the accrued income now in its hands as trustee, and one-third of all future income as and when the same is received until the entire balance of the principal asreduced (emphasis mine) herein, in addition to any insurance cost, as aforesaid, shall have been fully paid to Celia Merwin." The committee has credited Ruth Osterweis with the amount of payments made to her under this assignment, on the Merwin indebtedness.
This, it is claimed, is an incorrect interpretation of the foregoing quotation from paragraph 5 of the agreement. My conclusion concurs with this claim. The assignment to Ruth Osterweis was to continue, as provided, until the Merwin indebtedness as reduced to $2,325 was paid. Accordingly, under the agreement of counsel before me, paragraph 30 is modified as follows:
Amount due Celia Merwin under agreement of April 21, 1938 ..................... $2,325.00
Insurance premiums paid by her ......... 208.71 --------- $2,533.71
Payments to Celia Merwin by trustee since April 21, 1938 ................. 888.33 --------- Balance due Celia Merwin ............... $1,645.38
(The balance of subdivision III is reported as amended November 6, 1940.)
In the matter of the application of Robert Emmett Connolley for an allowance in the above matter, I am bound to look at the final picture which confronts us, in the line of our decisions on similar applications. All of the counsel connected with the above matter did considerable work in varied degrees, but the case of Bridgeport-City Trust Co. vs. FirstNational Bank and Trust Co.,
Without in any way detracting from the diligence that was applied to the matter in hand, under all of the circumstances, I cannot bring myself to the conclusion that an allowance should be made in this case out of income generally. There is reasonable authority, however, for the allowance of counsel fees from the fund which has been protected or preserved for the benefit of others, on the theory that those who have shared in the benefits should contribute to the expense. Hempsteadvs. Meadville Theological School,
Something over 200 hours have been expended by the trustee's attorneys, including three days trial before the committee. A request has been made for $1,000. Under all the circumstances, however, $750 seems reasonable, especially in view of what remains to make payment. It should be paid out of income and not principal. Bridgeport-City Trust Co.vs. First National Bank and Trust Co.,
A fee of $300 for the committee is approved.
In conclusion, the committee's report is accepted subject to the foregoing modifications and priorities thereby resulting and judgment may be prepared to accord herewith.