*1 Sill v. White. that it come in to the The agreed subject exception. might th,e adds was.not afterwards referred finding objection the trial the court no consideration. gave The court treated the as the counsel evidently objection, done, seem- have as withdrawn. practically out, As the issue formed com- already pointed the first and second defenses is the material by plaint only The other issue the whole case. issues were material ones, conditional ones. were They dependent upon main issue. were like the branches of a tree which They trunk. If out from its cut tree is down the spring fall to aud branches die. It is:not ground necessary cut off branch. main each The issué the case having been-decided all the plaintiff, issues dependent became lifeless. them would have Any finding upon been idle. No one could benefited have been The thereby. record of the case would have been still more cbnfused by worthless matter. The all Court' treated utterly Superior these as its decision issues decided substantially main issue. that this was error. We are prepared say if We can it was error it was one which has done say no harm. plaintiff There is no error from-.1 appealed other In this concurred. opinion judges George Sill William G. vs. S. White. T., Andrews, Dist., J., Carpenter, Seymour, C. Oct. Hartford Prentice, Torrance Js. died, leaving estate in he had a life estate which wife of W The curtesy. gave him all her left will which she She tenant life, necessary with a to use whatever was for his way support, nothing and remainder over. He did in the given electing he would retain the life estate him the whether given or take that the will. as tenant law

DECEMBER, 1892. *2 v.

Sill White. debts; protected latter was attachable for his at- former was from lived, long any marriage as tachment statute children of holding regarded there were several. Held that he would be under estate and that his life interest in former estate was not open to attachment. that, being open attachment, not it And held could not be taken judgment lien and foreclosure. right given to W the will to use whatever of the Also held that property support, enlarge needed for his was did not given into a fee. life estate property right support W’s that under the will to use the Also for his was an interest that could have been attached. [Argued 10th, decided December October 5th 1892.] lien; to foreclose a to the judgment brought Supe Suit Hall, J. rior Court Hartford heard before F. B. County, defendant, found and rendered for the Facts judgment appeal by plaintiff. If se.

Plaintiff, pro not, 1. While the wife could lessen the husband’s perhaps, estate, it, and did she could it a absolute fee enlarge making or itCan be claimed that the defendant takes contingent. his life estate law and the it dispose right and that these two are and distinct? Grant- rights separate so, be it would that the ing proposition appear plain- tiff would have to foreclose whatever interest the right defendant will. has the real estate It makes no difference how little or how it de- be. The great may fendant’s for his dispose property support, that an interest foreclosed. may if it has 2. The mean using any that defendant of it for his may dispose ing, support is, needed; that he it—a if sell or the whole. may part has been determined where estate for life is devised devisee to of it at with his own discre dispose power use, Culver, own takes a Hull tion for his fee. v. 403; Probate, id., 607; Conn., 41 McKenzie's App. from Palmer, id., 454. If it is claimed that the Lewis v. absolute but the de- sell is not contingent upon power

Sill White. necessities, he -is not re- fendant’s closely appears “ stricted, and comfortable for it support.” says good in the same become two life person estates vesting law, and is true This is universally elementary merged. the two will estates keep unless for some reason'equity exist in this case. That reason does not Equity separate. debtor and them to aid a keep apart protect-his from creditor. liens 4. The statute with provides regard effect where the land could not shall not take they *3 on execution on the same judg- have been levied upon defendant’s then is whether the ment. The question his It is attachable for debts. claimed that his estate was was from at- life estate as tenant by curtesy exempted Statutes, But of Gen. this exemption tachment by § of from attachment for debts is the policy property to of all our which favors the property subjection was liable to at- An estate owner’s debts. Conn., Johnson tachment at common law. v. Chapman, should be con- 550. An of statute strictly exemption is to be in whether the defendant strued. And determining will or cur- under the as tenant as holding regarded the law. be influenced the court should tesy policy of Steele, T. E. for the appellee. White, defendant, and William S. his J. The

Prentice, 1838, wife, White, in and E. were married lived late Mary 9th, 1890, when and wife until May as husband together died, husband As the Mrs. White her leaving surviving. born. of several children were Some issue of marriage Mrs. White are pur- these children now living. estate, name, chased, which she own certain real con- her and own, she with the defendant and which tinued to Mrs. their resided until her death. children thereafter 1889, was White executed which duly pro- left thereof and settled bated. The defendant was executor of her will White the first Mrs. pro- estate. By paragraph Sill v. White. and of her 'debts funeral charges. payment vided few she made a to her In the second bequest daughter and fourth of her effects. The third personal para- articles as follows:— are graphs “ use, and 3d. I income improve- give bequeath estate, of all the both real and ment rest residue of my I to hus- my which die seized personal, possessed, band, White, life, William S. to his be held much of as with said estate my using to him a and comfortable secure necessary support. “ husband, 4th. At the if he decease said survives my me, him, or at if I I all decease survive devise my give follows, said then my property remaining wit:—My said shall be divided into nine five equal parts, Isabelle, I which two son give my parts my daughter White, White, A. Charles one H. and the Leverett part White, I other Sarah E. widow of deceased part give my White, son Frederick W. to be held them and their heirs forever.” estate consisted of

Mrs. White’s the aforesaid real $1,600 bank, and her deposit savings personal effects. *4 19th, 1890,

On October the recovered a plaintiff of the defendant his indorsement a certain upon note, $6,300.89, which, the sum of with promissory thereon, interest remains On the 28th of wholly unpaid. October, 1890, the said filed a satisfy plaintiff, judgment, is lien on said real estate. This fore- brought complaint the lien. close is, before court whether the defendant question in

has title or interest said which can be taken any premises the foreclosure proceedings. White, became, decease, Mr. wife’s force of his in of a tenant her estate. By right of all he was to the use for his life her this entitled tenancy “ use, Mrs. will to him the lands. White’s purports give rest, all residue and re income impx-ovement in of her estate contro mainder premises ”—including lxii.—28 Vol.

434 v.

Sill White. “ to be him versy, his life.” held She then gives to him so much of her estate using as should secure to a necessary sup remainder, she port. Lastly, devises the after the decease husband, of her to her children and the widow of her de ceased son. Here are words and most aptly emphatically White, a life in Mr. a creating conditional power it,.and with a over of coupled the remainder. gift That there is no rule law which a converts life estate created into a fee or expressly absolute or qualified, into other form a estate, of estate than any life greater rea- sale, son of there with coupled has being power been this Stillson, declared court. Glover repeatedly v. 56 id., Conn., 316; 553; Peckham 57 v. Hull v. Lego, Holloway, id., Walker, Maine, 145; 210. See also Stuart v. Mass., Walsh v. Woodbury, testator to The intention of this create life estate merely in her is manifest. There husband the terms nothing of the will to this defeat intention. Peckham v. Lego, conditions precise before us supra, language were considered, and it was that a held life estate was cre only case, ated. The court and in reasoning cases v. Stillson and Hull cited, Glover above Holloway, wherein less words and more apt powers were sweeping estate, held to create than- need not be greater It is that Mrs. here clear White’s repeated. contains to her husband of a life of a attempted gift life estate only. case contention

Upon plaintiff’s aspect circumstances, the effect of the all the has thereunder, in the defendant a life estate been vest his, of the life estate which would otherwise be place the will and not as now holds under a tenant *5 is, that as to The the annexes curtesy. .argument defendant, wit, to life estate a beneficial to to use for his needed and as he must power support, accept fractions, must, and not in as a whole the devise he to the be to absence of have ae- contrary, presumed proof DECEMBER, 1892.

Sill». White. this contention to sufficient answer A the devise. cepted An it implies. line of the reasoning very appears to notice occasion as we shall have curtesy, estate not features beneficial later, to certain has appurtenant to If it is be pre- an life estate. to ordinary appurtenant, whence is accepted, beneficial estate that the mere sumed n the will is under that the life estate arises presumption con- If the Mr. plaintiff’s White? the more beneficial.to would seem results it of the desired to be fruitful tention is of which more beneficial that estate the difficult to regard . alone he can be deprived.

. we ob- a closer scrutiny this line reasoning If we give tenancy a husband of his to that its result is deprive serve Seized on his act whatsoever part. without any the curtesy decease, entitled before the wife’s estate freehold ensues, himself finds he moment death life use the to his presump- wife aided by legal a mere act of the divested by hus- the surviving what law casts upon tion. Plainly, from save taken which cannot be band is something is no requirement own. There statutory some act of his a life estate as tenant entitled to that one who is elect shall and is same estate by curtesy, given to silence. he will He privileged which hold. has done noth- has said nothing, the case at bar Mr. White silent, had a He has remained passive ing. to avail that he proposes to indicated do. He has even Mani- him. which the will gives himself the privileges his life estate by lost held to have he cannot thus be festly the curtesy. however, contention, lies deeper. to

The real objection in her lands of a life estate devise Mrs. White what she an attempt give life of her husband was n direct in her power It did not was have give. law this subject Upon should vest. where this estate furthermore, was, and spoke unqualifiedly. spoke, the act than a higher right to one who by attempt give decease, en- become, the testator’s was testator his wife’s Before given. to the purported titled *6 436. 1892.

Sill «..White. Mr. decease White was a tenant initiate in curtesy her lands. As such tenant he was of a seized freehold es- wife, tate his own the interest of his was mere right, interest, reversionary her upon depending Brennan, Conn., husband. 511. Fitzgerald v. 57 The further plaintiff the.defendant suggests although continues to hold his life estate as tenant curtesy, there still an interest in him which he the will holds under and that only, this is not exempt. so, sake that this is

Admitting, argument, remains, nevertheless difficulty this interest is one which, to the defendant. purely personal is one its nature, can very inure to the benefit of no one else. Clearly, sell, measured for the satisfaction of Mr. wants, White’s of which creditor personal nothing any This, can avail further, himself. without going furnishes sufficient answer to this contention.

As the defendant holds as tenant his inter- est cannot be taken or attachment execution children, the life of cer- any except debts, tain classes of to which the does not plaintiff’s belong. That such is section scope the exemption .contained clear, 1165 of General from its lan- Statutes is both and from the out of which history prior guage legislation it has been evolved. Such has been to be its effect recognized 550; Conn., court. Johnson Jack- this v. Chapman, Hubbard, id., son liable to be taken execution premises- being cannot satisfy be taken plaintiff’s they judgment, Statutes,

foreclosure of lien. Gen. § no error in There was from. judgment appealed J., J., Andrews, Torrance, C. con- opinion J., result,, curred. Seymour, concurred in. the but died’ beforé was written. opinion Carpenter, J., .. is, of this case view My. dissenting. to be defendant ought regarded holding

DECEMBER, 1892.

Sill White. will, than the as tenant the under law the rather by curtesy. would, tenant, so. The life At common law clearly waste, for was not unless the made so impeachable by so; the common law will made him the being principle is act life created of the the by when a estate parties, for waste unless the not instru- life tenant impeachable the of waste. the estate commission ment prohibits creating In- in life estates created law. by operation Otherwise law such cases the the reversioner protects by restraining estates, now A statute restrains waste life created waste. instrument, or other the instrument will unless by creating it; that all life estates are the estate allows now practi- same then in this Assuming the cally upon footing. the will and the estate case the estate created created by identical, and that the are the law are circumstances tenant under the one or such as the holding justify other, elect, he not to make his elec- the as he may ought election, would And, ? in the of an would or tion absence creditors, and to in the interest not the law presume, all a man’s a of the law that effectuate favorite principle debts, that he holds should be liable his this, can be little will ? There certainly hardship the be, himself, if can need pro- for he rejecting protect will, fall back his upon rights. legal visions do not call for an answer of this case But the exigencies and that estate created these legal questions; identical; and defendant has practically are the will. the will to hold under Under his made election dis- has estate. He than legal he has more estate, if need or even the whole part pose to him a be, support.” “to secure he no such has curtesy right. As tenant by he has elected his conduct Moreover, silence trust, executor, was the accepted He legacy. accept in- is no There settled the estate. has proved the legacy that he refused accept in the record timation in the interested and others to creditors notice and gave estate conferred he relied solely Heilman v. Burritt. so, law. favor- But if it the devise were being him, able to until the law the coHv presumes acceptance trary appears.

One word elect may more. is now held that hold as a defeat the tenant and thereby claims of creditors. If find needful hereafter he should in order to to sell some part secure comfortable support, and a arise between should controversy that, himself, reversioner and to hold the court prepared *8 for case, of purpose provi- might.hold sions of the will? C. Burritt vs. Alonzo

Martin Hellman others. Carpen- Cos., T., Andrews, J., New Haven & Fairfield Oct. C. ter, Fenn, Js. Torrance pieces tax A lien on several as a lien one of land cannot enforced of them alone. A tax lien cannot be sustained where the on which the lien is , party claimed was set the assessors in the list of a whom title did not stand on the records. . [Argued 10th, October 28th December 1892.] decided tax-liens; for the foreclosure to the Dis- brought Suit trict Court reserved, Waterbury, finding facts, of this court. advice

L. F. for the plaintiff. Burpee, Briscoe, A. W. the defendants. in this C. J. The case claims complaint judg-.

Andrews, ment for the amount of certain tax liens—two in favor of town two favor of the city Water- Waterbury, two favor of First School District of bury, Wa- ; and for a strict foreclosure or a sale terbury premises.