apart from the other. Nine of them were so | fifteen rooms. During portions of the year, located, contiguous to each other, that they amounting to at least six weeks on the averwere capable, by the removal of walls and age, each fall and spring, covering the time fences, of being thrown together, and formed when Branford House was being opened and into one entire tract, separated in no other closed, Mr. Plant occupied this Bungalow. way than by a highway running through it During the winter season, which he customfrom west to east. A tenth tract consists of arily spent in New York, the larger house was a small island a little distance from the closed and the Bungalow kept in readiness shore, and immediately in front of the land and heated for immediate occupancy by Mr. last described. Plant or members of his family, should they desire to make winter visits, as they sometimes did.

After Mr. Plant's acquisition of these nine mainland properties, he took down the division walls and fences, and built a stone wall around the land south of the road, and another around that lying north of it. These two tracts he proceeded at great expense to develop for his residential purpose. He erected buildings upon them all adapted for use in combination for this purpose, and afterwards as long as he lived so used them. Upon the land south of the highway, and that portion of it comprised in his first purchase, he, during the years 1903 to 1905, erected a large mansion house, which he called "Branford House." This was the first building erected by him. In connection therewith he constructed of pink Tennessee marble an elaborate so-called Italian garden, costing $150,000 and more. This garden contains a large number of orange trees and various plants in pots and tubs, which, being non-hardy, have, for their protection, to be placed indoors and in a heated building throughout the season of cold weather. Other structures were erected by him from time to time on the land south of the highway, and forming a group somewhat separated from the Branford House and nearer the highway. This group consisted of greenhouses, a barn, stable, power house, bay house, and laundry, and a porter's lodge. The cost to Mr. Plant of this property, grounds, and buildings was over $1,500,000. On the land across the highway he built a so-called "Bungalow," which, in fact, was a by no means mean residence, costing substantially $170,000, and there were, or were built by him, upon this piece five other buildings.

Three of these he used as houses where serv

During the periods when the Bungalow was occupied as stated, the family made use of the garage, stable, greenhouses, and other outbuildings standing on the tract south of the highway. There were no separate outbuildings designed for use in connection with the Bungalow. The latter building has never been used except for the purposes above indicated and the two inclosed tracts above described, with the buildings therein, have always been used and managed by Mr. Plant as one property, some of the same servants being employed alternately at the Bungalow, at the Branford House, or on or about any portion of the grounds. The expenditure accounts for the upkeep of these grounds and buildings, including taxes, insurance, water bills, painting, carpenter work, and sundry supplies, were kept separate from those relating to other Groton properties owned by Mr. Plant. Exclusive of living expenses, they amounted to over $83,000 annually for the years 1916, 1917, and 1918.

was

For some years prior to and at his death Mr. Plant owned other property, consisting of about 400 acres located in Groton and about 300 acres in East Lyme. This property used by him for farming purposes. That portion of it which lay in Groton was and had for several years been used by him for general farming, as a cattle and dairy farm, and a portion of it for the raising of vegetables and poultry. The land in East Lyme was used by him for general farming and as a swine and sheep farm. These farm lands in Groton and East Lyme were operat

ed under the name of "Branford Farms." ants employed by him in or about the Bran- used in the conduct of the farms, and had Upon them he constructed many buildings ford House resided, a fourth for the lodging and feeding of men who worked in the green-ment and much valuable stock. thereon an extensive and expensive equipHis operahouses, and the fifth for a central office oc

cupied by the person having general charge of the Plant property in Groton, including the Branford House and grounds. On this piece north of the road, when he purchased it, was an ice pond. This he deepened and cleared, constructed an island therein, and stocked it with fancy fowl.

Branford House was the principal residence of Mr. Plant up to the time of his death. It was expensively furnished, at a cost of more than one-half a million dollars. The so-called "Bungalow" is a fully furnished and equipped dwelling house, containing

tion of the farm for the years 1916, 1917, and 1918 had resulted in an average loss per year of upwards of $96,000.

Henry Bradley Plant will become 25 years of age on May 18, 1920, and Philip Morgan Plant on August 24, 1926. The following questions are reserved for advice:

"First. Whether the provisions of article tenth of said will include the house known as the Bungalow, including the lake and buildings standing adjacent thereto, and heretofore described in paragraph number 4.

"Second. As to the meaning of the term 'home' in article tenth of said will.

(111 A.)

"Third. As to what property or properties, The concrete questions presented for answer the provisions of article tenth of said will in- are 11 in number. Ten of them grow out of clude and refer to. the provisions of the former paragraph, and one out of those of the latter. When, howniture and furnishings in said Branford House ever, these questions are examined and anaand in the Bungalow, providing the latter beyzed, they will be found to embody three included in said provisions.

Charles B. Whittlesey, of New London, for such entirety to serve the testator as his plaintiffs.

scope and meaning of his descriptive language the whole property used by him for his residential purposes and everything belonging to it.

Plant should come to regard this product, part of the testator to include within the of his thought and care in its entirety as his home. The whole plant, furnished and equipped as it was for his residential purposes, doubtless represented in his thought his home-his home in the intimate and comprehensive sense which that word implies as distinguished from more formal and common property descriptions. He had created it all to serve the purpose of his home, and had enjoyed it for that purpose. No one spot in it, doubtless, was to him less a part of his home plant than another. It all together comprised that plant of which its several portions were interrelated and constituent parts of the whole.

The presence of the highway running through the tract creating the outward appearance of two tracts is merely an accidental incident of no real significance as establishing a line of division between that lying north and that south of it. The whole tract is as much one and entire for all practical purposes as it would be if the easement of public travel was not there. It would, of course, be possible to separate the north from the south piece, and utilize each in the future independently. The inevitable result of such separation, however, would be that neither portion would afford complete facilities for a residential use commensurate with the character of the property or comparable with the testator's use. It is scarcely conceivable that the testator would have developed this extensive plant at great expense, and elaborately fitted and equipped it as a whole to serve his purposes as a place of residence, who doubtless took pride in his achievement, and who was providing for its maintenance, or at least the maintenance of some portion of it, for his only child, should, with his ample fortune, deliberately plan and provide for a property disposition which would work the undoing, in some measure at least, of his labor of years, and the disruption of that which his thought and care had brought into existence.

Did these considerations, leading to the conclusion that Mr. Plant used the language of his will in the inclusive sense above indicated, call for re-enforcement, it might be found in the language itself. Had he intended, as certain of the interested parties claim, to describe the premises upon which | the Branford House stands only, or any other portion less than the whole of the Eastern Point property, he quite certainly would have used language other than that which he did use, and the particular language employed by him, to wit, "my home at Eastern Point, Connecticut, with all its appurtenances," however apt or inapt the word "appurtenances" therein used may in its strict technical sense be said to be, is certainly very suggestive of a purpose and intent on the

[2] The duty of maintenance imposed upon the trustees is a more comprehensive one than that of merely preserving the property in a condition fit for occupancy or that of making such repairs as may from time to time be necessary to prevent it falling into decay. It involves keeping it in a condition which should reasonably conform to the standard set by the testator in his lifetime and down to the time of his death. The injunction to maintain the property was one to preserve it in substantially the same physical condition it was in when it passed out of the testator's hands at his death. The duty imposed upon the trustees, therefore, includes not only that of repair in order to restore where there has been deterioration, but also such care and attention as may be reasonably necessary to prevent deterioration, and that of replacement where it becomes necessary, by reason of ravages of time, the elements, or use, in order that preexisting conditions may be reasonably maintained.

The position that the trustees occupy is analogous to that of a landlord under the obligation of maintaining the existing condition of leased property, and that of the son Henry to that of a tenant exempt from the payment of rent, but entitled to have the property conditions preserved by his landlord. The expenses incident to occupancy are to be borne by the latter; those involved in maintenance by the former.

The property which was intrusted to the care and keeping of the trustees, with the injunction that it be maintained by them, was property of an exceptionally high-grade character, fitted, furnished, and equipped for the occupancy of persons of large means and extravagant tastes. It was to be maintained for the use of the testator's son and only child, who was the inheritor from the testator of a vast estate. Whether or no the testator took pride, as he quite likely did, in providing for the continuance of this notable property as a sort of memorial of himself, it is quite certain that he did not contemplate or provide for a niggardly maintenance, or one which would not preserve the property in substantially the same condition it was in at his death.

The third of our questions finds its answer in part in the express language of the two paragraphs under review, where it is provided that the expense of maintaining the property and operating the farms should be charged against the income of the trusts created in the will for the benefit of the testator's wife and sons.

These trusts are, of

(111 A.)

the by no means unnatural order of events, continue until, if the directions of the will be obeyed in disregard of the effect of paragraphs 10 and 11 upon them, the only portion of the residue fund remaining in the hands of the trustees would be that, or some portion of that, set apart to the adopted son's share. The vitally important question not specifically answered by the will, therefore, arises as to whether the proportional division of income directed by the testator is one that remains constant in its proportions, or is a variable one, whose proportions are to be fix

course, those created in the residue and remainder of the testator's estate given to the trustees, to be held by them primarily for the benefit of the wife, son, and adopted son in the proportions of one-third, one-half, and one-sixth, respectively. This statement of proportions, while not strictly accurate by reason of the disposition made of two comparatively insignificant sums which were to come out of the shares of the two sons, is practically so by reason of the inconsequential character of the variations caused thereby, which may, for convenience sake, be disregarded in our consideration of the pro-ed from time to time upon the basis of the portions.

amount of principal belonging to each of the three interests which produces the income which the trustees receive, or, if a division into three funds is made, upon the basis of the amount of income produced by each.

The burden of the cost of maintenance is thus cast upon the income of the trust fund or funds, and forms a charge upon that income, taking precedence of all claims of beneficiaries of income to the extent that its Before pursuing further the consideration priority exists. As there are three persons of the question thus presented, it is pertinent who, in different proportions, are privileged to note that, by force of the provisions of to share in the income produced by the resi- paragraph 7, the trustees are empowered to due property, it becomes necessary to know maintain the residue fund as one undivided in what way this burden of expense is to fund, or as three separate funds appropriatbe borne. The will settles that question also ed and set apart to the three income beneto the extent of saying that it shall be charg- ficiaries, respectively. Whichever of these ed "proportionately" against the income of courses the trustees adopt, the practical rethe trusts created for the benefit of the tes-sults, in so far as the rights of the beneficiatator's wife and sons.

ries are concerned, are the same. Whatever is done, there are in effect three trust funds created, one for the benefit of each of the residue income beneficiaries. It will, perhaps, serve to clarify the situation and simpli

treat the subject under discussion as involving three funds.

[3] Under the conditions existing when the testator died, and which continued down to the time when this case was argued before us, there could be no doubt that one-third of the cost of maintenance would be charge-fy our consideration of it if we hereafter able to the wife's share of income, one-half to the son's, and one-sixth to the adopted son's. This result, accepted by all the inWe are of the opinion that the position first terested parties as correct, would be accom- hereinbefore stated, that the apportionment plished, if the residue fund was not divided, of the burden of property maintenance and by the simple process of charging the outlay operation is to remain a fixed and constant to the total net income of the fund and dis-one, is correct. A division upon the other tributing the balance in the proportions stated. If, on the other hand, the total fund be divided by the trustees into three funds, assigned to the several income beneficiaries, the proper distribution of the burden would be cast by charging the income derived from each subordinate fund thus created with the proportion of expense stated.

But the conditions referred to will not be permanent. The provisions of the will with respect to the one-third portion of the principal representing the wife's beneficial share of the trust fund, and with respect to the payments of principal to the sons as they respectively reach certain ages, render it inevitable that in the course of time the proportions of income producing principal in the hands of the trustees belonging to the several interests will be materially changed and frequently changing. In fact, the time has at this writing already come when the son Henry's arrival at the age of 25 years has begun the process of change. It is easy to surmise that the process thus begun may, in

variable basis might well, and in all human
probability would, lead to results quite con-
trary to the testator's purposes as they are
revealed in his will and accomplish the de-
feat of the underlying scheme of his benefac-
tions. That scheme and these purposes are
clearly shown. They were that the testator's
net estate, subject to the charge of property
maintenance and farm operation, was to pass
in beneficial enjoyment to his wife, son, and
adopted son in fixed proportions.
We are
able to discover no provision of the will mod-
ifying that situation unless it be found by
interpretation at the point under considera-
tion. If the claimed interpretation requiring
the use of variable proportions be adopted,
radical modifications are imported into the
testator's scheme of disposition. The mod-
ifications would be not alone radical, but also
most uncertain in their operation and effect.
Some one or two of the three income bene-
ficiaries would most surely be greatly ad-
vantaged or disadvantaged by its operation.
Which one or ones would be benefited, and

which harmed no one can guess, even now, and the testator was equally in the dark upon that subject. He certainly did not intend to so far upset his general testamentary scheme and purpose as to commit the disposition of a considerable portion of the income of his estate to the chance fortunes of so bold a lottery as would result. Neither is it to be readily believed that he provided for

so radical a modification of that scheme as the variable basis would quite surely import

into it.

We are of the opinion, therefore, that the expense of maintenance and operation provided for in, or permitted by, paragraphs 10 and 11 of the will, is to be borne by the income of the three funds in constant proportions, determined as of the death of the testator, and being substantially one-third by the income of the fund for the benefit of the wife, one-half by the income of the fund for the benefit of the son Henry, and one-sixth by the income of the fund for the benefit of the testator's adopted son Philip. These burdens constitute a charge upon the income, and through the income upon the principal, of

these funds, respectively, to the extent thus indicated.

CHODES v. EVERETT B. CLARK SEED CO. (Supreme Court of Errors of Connecticut. July 20, 1920.)

Highways 184(4)-Instruction in action by guest in vehicle that road rules have no bearing on the case erroneous.

jured in a collision with a motor truck, a charge

In an action by a guest in a motorcar, in

that the law of the highway in force (Gen. St. 1918, § 1540) had nothing to do with the facts, was improper, because there could be no recovery unless defendant's servant in charge of the truck was negligent, and obviously, in determining that question, rules of the road were material, for he might well have relied on other though negligence of plaintiff's host could not travelers' observance thereof; and this is so, be imputed to him.

Appeal from Court of Common Pleas, New Haven County; Isaac Wolfe, Judge.

Action by Nathan Chodes against the Everett B. Clark Seed Company. Judgment and verdict for plaintiff, and defendant appeals. Error, and new trial ordered.

During the evening of October 28, 1918, one Ganz, with whom the plaintiff was riding as a guest, was driving the former's motorcar along the highway known as the Derby turnpike. He was proceeding in the easterly direction or towards New Haven. At the same time the defendant's servant was operating its motor truck upon a highway leading from the south into the Derby turnpike. At the point of intersection of the two roads the two motorcars came into collision, with the result that the plaintiff was injured.

It remains to notice four incidental questions propounded for advice whose answers are not specifically given in the foregoing consideration of the major questions thus far discussed. Their answers and the reasons therefor, however, are sufficiently indicated in what has already been said to excuse further discussion which would be substantially repetitious. The furniture and furnishings in the Branford House and the Bungalow are included in the property to be maintained by The plaintiff charged and sought to prove the trustees for the use of the son Henry. that the defendant's car, as it approached the The maintenance of that portion of the prop-intersection, was going at an unreasonable erty extends to renewal as the same may and reckless rate of speed, and that its drivbecome damaged, worn, or worn out. The trustees, like any landlord, are to pay the taxes assessed upon the property as involved in their duty of maintenance. They are not required to pay the cost of operating the greenhouses or heating them during the time that the son is not occupying the premises, except in so far as such operation and heating may be necessary in the care of the trees or plants forming a part of the equipment of the Italian garden or other portions of the premises. The operation of those structures under other conditions belongs to the burden incident to occupancy and use.

The superior court is advised to answer questions 1, 4, 7, and 9 in the affirmative, question 6 in the negative, with the qualification above stated, and the remaining questions in accordance with this opinion.

No costs in this court will be taxed in favor of either party. The other Judges concurred.

er did not have it under suitable control, gave no warning or signal of his approach to the intersection, neglected to keep a proper lookout for other travelers, and failed to slacken the speed of his car as he approached the turnpike. The defendant, on the other hand, claimed and offered evidence to prove that Ganz was proceeding at an excessive rate of speed, that he was not on the right-hand side of the road, gave no warning signal as he approached the intersection, and wrongfully attempted to pass in front of the defendant's truck, which had the right of way, coming, as it was, from Ganz's right. Both offered evidence to prove that their respective cars were operated with due care and conformably to law. It was not claimed that the plaintiff was in any way responsible for, or had any manner of control over, the operation of Ganz's car.

James D. Hart, of New Haven, for appellant.

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