find a verdict for the defendant." it there, as she says, upon an understanding | case where both the pleadings and the claims or a statement made by the plaintiff, 'If you of the parties call for a plaintiff's verdict of will get out, I don't want your money,' because, $200 or a defendant's verdict, irrespective of if you find that to be the fact, then you will whether the agreement was for security or a conditional sale, we cannot see that the errors claimed by the plaintiff worked to his disadvantage, and he is not entitled to a new trial on what in this case must have been immaterial error. Deming v. Johnson, 80 Conn. 553, 69 Atl. 347; State v. Kallaher, 70 Conn. 398, 39 Atl. 606, 65 Am. St. Rep. 116; Wheeler v. Thomas, 67 Conn. 577, 35 Atl. 499; Lutton v. Vernon, 62 Conn. 11, 23 Atl. 1020, 27 Atl. 589; Munson v. Derby, 37 Conn. 298, 9 Am. Rep. 332. The plaintiff in another reason of appeal complains because the court did not charge that the agreement was a conditional bill of sale, and that the title remained in the plaintiff until the $200 was paid, instead of leaving that question to the jury. As seen above, It would have been error to so charge. The ninth reason of appeal is criticized as vague and obscure. This relates to some aspects of a conditional sale, and to that extent is erroneous. It is quite true that the allusions are obscure, but we cannot see that they definitely instruct the jury as to any point material in the case. Both the latter two paragraphs mentioned confuse "loan or security" and "conditional sale." Nothing, however, will be gained by setting out the paragraphs in detail. Referring to the final and definite instructions set out above, we may adopt the statement of this court in Hubert v. N. Y., N. H. & H. R. R. Co., 90 Conn. 274, 96 Atl. 972, made with reference to contributory negligence: "After the final instructions, given in such a way as to impress them most strongly upon the jury's attention, their minds could hardly have been left in a state of doubt or confusion." There is no error. All concur. (95 Conn. 216) CARTER v. BROWNELL et al. (Supreme Court of Errors of Connecticut. July 20, 1920.) [3, 4] Notwithstanding these criticisms of the charge and the manifest errors made by the court, it is to be noted, as stated above, that they are mainly objected to as being immaterial, irrelevant, obscure, and confusing. The real question remains whether, under the pleadings and the claims of the parties as disclosed in the finding, the portions of the charge complained of and determined to be erroneous entitled the plaintiff to a new trial. It is well settled that errors in a charge, I. Trusts "Spendthrift trust" defined. if it clearly appears that they were not mis- A "spendthrift trust" is one which provides leading or could not or did not affect the re- a fund for the benefit of another, and secures sult ultimately reached, do not furnish it against his own improvidence, placing it beground for a new trial. Were the jury mis-yond the reach of his creditors. led by the errors in this charge to the injury [Ed. Note. For other definitions, see Words of the plaintiff? The defendant's verdict is and Phrases, First and Second Series, Spendthrift Trust.] a clear finding, either that the defendant did not borrow the money as to which the instruction was clear, or that, if she did borrow the money, the plaintiff took the proper- Attempted spendthrift trust of life estate ty in full satisfaction of his loan. The final by testatrix in favor of husband wherein the instructions, and they must have been under- trustee was given no discretion over income, no stood by the jury as controlling, were defi- right to withhold it, no right to accumulate it, nite and correct, and have been set out in full and the trust not being for the support of the and no power to expend it for the beneficiary, in the previous part of this opinion. These beneficiary husband or his family, held not withwere clinched by the final charge of the court in Pub. Acts 1899, c. 210 (Gen. St. 1918, §§ on returning the case for further considera-5872, 5873), authorizing spendthrift trusts on tion. If the court had charged that the trans- certain conditions. action was a conditional sale, with the con In 2. Trusts 12-Attempted spendthrift trust in favor of husband not authorized by statute. come. sequences as claimed by the plaintiff, this 3. Trusts 274 (3)-Expenses and counsel fees of defendant trustee chargeable to inwould have been equally erroneous with the charge actually given upon that point. leaving the question of conditional sale to the jury with the consequences set out as to the crediting of the valuation lower than $200 as stated by the court, the charge was too favorable to the plaintiff, and that portion of the charge seems to be the only portion as to which, in the setting furnished by this case, any serious objection could be taken. In a Expenses and counsel fees of defendant trustee in suit by creditor of beneficiary of attempted spendthrift trust to subject income to its claim, held chargeable to, and to be paid from, the income of the trust fund. Gager, J., dissenting. Case Reversed from Superior Court, Fairfield County; Frank D. Haines, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (111 A.) Action by Samuel E. Carter against Harry [tion of her will that her husband, by reason C. Brownell and others. On reservation of his years and manner of life, was incain the Supreme Court of Errors on stipulation of facts. Superior court advised to render judgment in accordance with the opinion. The action is to recover judgment against defendant Brownell and for decree against Westport Bank & Trust Company, as executor and trustee of Sarah S. Brownell, to pay over the net amount of income which would otherwise be payable to defendant Brownell until said judgment be satisfied, brought to the superior court for Fairfield county, and reserved by the court at request of the parties (Curtis, J.) upon stipulation of facts by the parties. Sarah S. Brownell, late of Westport, Conn., resided for several years preceding her death at Westport with her husband, Harry C. Brownell, and they were mutually dependent for their support upon the income from a trust fund amounting to about $25,000, and created under the will of her father, which gave her the power of disposal of this fund. Mrs. Brownell made her will on the 19th day of January, 1918, and by virtue of said power under the will of her father disposed of said trust fund in the third paragraph of her will as follows: pable of supporting himself by any employment, and would be wholly dependent upon such income as she might provide for his support by will. Mr. Brownell has since his wife's death no property or income other than such in- The questions reserved for the advice of this court are as follows: "(1) Whether this court may and should enjoin the defendant Brownell from assigning, or attempting to assign, or in any manner to sell, dispose of, or incumber, his life interest in the aforesaid trust fund held by the defendant, the will of Sarah S. Brownell, deceased, or the inWestport Bank & Trust Company, under said come, rents, issues, profits, or dividends accrued, or to accrue, upon said trust fund, unless and until his said indebtedness to the plain tion, and the judgment of this court to be rendered on said indebtedness, is wholly discharged and paid, including lawful interest thereon. "(2) Whether this court may and should adjudge and decree that the defendant Brownell assign and set over to the plaintiff, his executors, administrators, and assigns, all his right, title, and interest in and to the income accrued and to accrue upon said trust fund until said judgment is wholly satisfied and discharged. "(3) I give, devise, and bequeath all my prop-tiff as set forth in said complaint and stipulaerty of every kind and nature and wherever situate, including the property now held in trust by the Philadelphia Trust Safe Deposit & Insurance Company of Philadelphia, to the Westport Bank & Trust Company of Westport and its successors, in trust nevertheless to invest the same, and to collect and receive the income, rents, issues, profits, and dividends thereof, and to pay over the same when collected in quarterly payments unto my husband, Harry C. Brownell, for the sole and separate use of my said husband for and during all the term of his natural life, and so that the same shall not be liable for the contracts, debts, or engagements of my said husband, then upon the further trust to pay over the principal of said trust to such charity or charities, public use or uses, as my said husband may by will designate, or, in the absence of such designation by my said husband, then to such charity or charities, public use or uses, as shall be designated by said trustee, the Westport Bank & Trust Company or its successors, such designation to be made within one year after the death of my said husband." At the time that Sarah S. Brownell made and executed her will and at the time of her decease she knew that her husband was indebted upon a judgment in favor of plaintiff herein in the sum of $24,717.85, and she made her will with that knowledge and in view of that fact. Mrs. Brownell had no children. Mr. Brownell during the last years of his life had no employment and was possessed of no property. "(3) Whether the judgment and decree of this court may and should issue requiring the defendant the Westport Bank & Trust Company, as trustee under the will of said Sarah S. Brownell, and its successors as said trustee, to account forthwith to the plaintiff for all income, rents, issues, profits, and dividends accrued upon said trust fund and in its possession, and to pay over to the plaintiff, his executors, administrators, or assigns, on account of said indebtedness to him of the defendant Brownell, the net amount thereof, and in like manner to account to the plaintiff and pay over the same to the plaintiff, his executors, administrators, or assigns, on account of said indebtedness, periodically, as the said income, rents, issues, profits, and dividends accrue in future during the life of said defendant Brownell, until the full amount of the judgment of this court to be rendered in favor of the plaintiff and against said Brownell upon the aforesaid indebtedness, including lawful interest on such judgment, shal' be satisfied and discharged, subject, however, to the reservation annually of sufficient of said income, not exceeding $50 per year, to provide for the care and maintenance of the aforesaid cemetery lot, as mentioned in the will of said Mrs. Brownell knew at the date of execu- Sarah S. Brownell, deceased. "(4) Whether this plaintiff, if not entitled to relief as above set forth, is entitled to equitable relief in some other form by which the net income accrued and accruing on said trust fund and directed to be paid to the defendant Brownell during his life, or the surplus thereof in excess of $1,000 per year, can and should be made available to the plaintiff as a judgment creditor of said Brownell, and, if so, in what manner and form such income during his life should be made thus available and payable to the plaintiff, his executors, administrators, or assigns, until the aforesaid judgment to be rendered shall be fully paid and discharged, including lawful interest thereon. "(5) Whether the expenses and counsel fees of the defendant trustee to be allowed by this court are chargeable to the income or to the principal of said trust fund, and, if in part to each, then in what proportion. dence, and places it beyond the reach of his creditors. In 1899 the General Assembly passed an act covering these kinds of trusts. At this time there was a settled English doctrine and a settled American doctrine relating to trusts of this character. Under the English doctrine a life estate, like an estate in fee, carries with it to the cestui que trust the power of alienability and makes both liable for his debts. Under the American doctrine, as recognized at this time by the United States Supreme Court and the courts of most of the states, the donor of the equitable life estate might, by appropriate language evincing an intent the cestui que trust the income for life, and so to do, create an estate which shall give to make the same inalienable by him and beMason v. yond the reach of his creditors. Rhode Island Hospital Trust Co., 78 Conn. 81, 85, 61 Atl. 57, 3 Ann. Cas. 586; R. C. L. vol. 25, p. 352; Nichols v. Eaton, 91 U. S. "(6) Whether the provisions of paragraph 8 of the will of said testatrix lay any duty or obligation upon the defendant trustee to consult the defendant Brownell regarding the investment or reinvestment of said trust fund or to follow his wishes or desires therein, and wheth-716, 23 L. Ed. 254. er, pending the discharge and satisfaction of said judgment to be rendered in favor of the plaintiff, the latter is to exercise and enjoy whatever rights belong to the defendant Brownell by virtue of said paragraph 8." We had in 1899 adopted the American doctrine in part. In Easterly v. Keney, 36 Conn. 18, we construed the testamentary trust then before the court as giving to the cestui que trust a vested life estate in the rents and profits of the land the subject of Arthur M. Marsh, of Bridgeport, for plain- the trust. The trust we held to be unlimited tiff. as to time, and continuing during the life of William H. Comley, Jr., of Bridgeport, for the cestui que trust, and giving to the trustee defendants. no discretionary power of appropriation-no power to withhold the income from the cestui WHEELER, J. (after stating the facts as que trust when the time arrives for payment. above). The plaintiff prays a judgment We therefore held that the income belonged against Harry C. Brownell, cestui que trust to the cestui que trust for all purposes, like of the income of a trust fund created by the any other property, and was available for third clause of his wife's will, and for a de- the payment of his debts, despite the testacree against the Westport Bank & Trust Com-trix's provision in the will that the rents and pany, trustee of said fund, requiring it, as profits shall in no case inure to the benefit of such income accrued, to pay over the net creditors. amount thereof, which would otherwise be payable to Harry C. Brownell, to the plaintiff or his order, until the said judgment be fully satisfied. Mrs. Brownell by the third clause of her will devised and bequeathed her property to the trust company in trust to invest the same and collect the income, "and to pay over the same when collected in quarterly payments unto my husband, Harry C. Brownell, for the sole and separate use of my said husband for and during all the term of his natural life, and so that the same shall not be liable for the contracts, debts, or engagements of my said husband." The defendant claims that this created a spendthrift trust in favor of Mr. Brownell, and that this limited equitable estate could not be alienated by him, and is beyond the reach of the plaintiff creditor. [1] The spendthrift trust is one which provides a fund for the benefit of another, and which secures it against his own improvi We pointed out the method by which the testatrix might have secured the income from creditors. The testatrix should have conferred upon the trustee discretionary power of appropriation, if she desired to deprive the cestui que trust of ownership of the rents and profits before they should be paid to him. In Huntington v. Jones et al., 72 Conn. 45, 50, 43 Atl. 564, we construed the testamentary trust as one requiring the trustees to apply the whole of the net income to the use of the cestui que trust; and we held that upon their refusal he could, by a proper proceeding in equity, compel them so to do, and, as he could do this, so his creditors could do it. The reason given for this holding was that the trustee was given no discretion over the income. This was as far as we had reached in the development of our law of spendthrift trusts when the statute of 1899 was passed. P. A. 1899, c. 210. This legislation, we believe, was wholly (111 A.) new to us. It provided whenever, by will or other instrument, a trust is created to re ceive the rents, profits, or income of real or personal estate for the benefit of any person, such rents, profits, and income shall be liable in equity to the claims of the creditors of such beneficiary when there is, in the trust so created, (1) no direction for accumulation of the income; (2) no direction given to the trustees to withhold such rents, profits, and income from the beneficiary; or (3) no express provision that such trust is for the support of the beneficiary or his family. Counsel for the defendant assume to find in some of our decisions adopted since the passage of the act of 1899 an acceptance of the American doctrine, and thereupon distinguish the statute as applicable to an unlimited right to and estate in the trust fund. That narrows the meaning of the statute against its explicit wording. We know of no decision of ours which has ever definitely adopted the so-called American doctrine. Mason v. Rhode Island Trust Co., 78 Conn. 81, 61 Atl. 57, 3 Ann. Cas. 586, relied upon by the defendant, does not adopt this doctrine. What it decided was what Easterly v. Keney and Huntington v. Jones decided, that where trustees were given, as in the will before the court, discretionary power to give or withhold from a beneficiary income, he was incapable of alienating it, and his creditors could not take it. The opinion recognizes the existence of the American doctrine; it does not adopt it nor approve of it. This act included our law as to spendthrift trusts so far as we had developed it, but it carried it far beyond. It covered a substantial part of the so-called American, doctrine, but it did not enact it in whole, and it attached conditions to the validity of spendthrift trusts unknown to the American doctrine. It was, we think, an attempt to broaden our law, and to attach certain definite conditions to all such trusts, whose presence should mark their validity, and The same doctrine controlled in Holmes v. whose absence should disclose their inva- Bushnell, 80 Conn. 233, 67 Atl. 479; and in lidity. It is not merely a statute of proced- this case the court points out that the trust ure, but one determining substantive rights. It applies to all trusts where property is given to trustees to pay over income. It is exclusive. Clearly it purposes to include all methods by which spendthrift trusts may be made effective. It is not narrow in its scope. Let the testamentary trust expressly provide that the income shall be for the support of the beneficiary or his family, and the testator's intent will prevail, and the trust be protected from the claims of creditors of the beneficiary. The statute is notice to all of how to effectively frame such a trust. Whether the statute intends that all income may be given by such a trust to the support of the beneficiary and his family, or the support intended is limited to reasonable support in view of the station in life of the beneficiary, or limited in some other way, we are not now called upon to decide. [2] Under the trust provision before us the trustee is given no discretion over the income, no right to withhold it, no right to accumulate it, and no power to expend i for the beneficiary for any purpose, and the trust is not for the support of the beneficiary or his family; hence it is not within the terms of the statute. G. S. 1918, §§ 5872, 5873. in question was created prior to the act of 1899. The hardship attendant upon the enforcement of this statute is not peculiar to this case. It frequently follows a failure to observe statutory provisions. Questions on reservations 2 and 3 are answered in the affirmative, and 6 in the negative. [3] As to question 5, the expenses and counsel fees of the defendant trustee are to be chargeable to and paid from the income of the trust fund. Other questions need not be answered in view of the conclusions reached. The superior court is advised to render judgment in accordance with the foregoing opinion. No costs will be taxed in this court in favor of either party. PRENTICE, C. J., and BEACH and CASE, JJ., concurred. GAGER, J. (dissenting). Without taking space to argue the case, I dissent from the conclusion reached by the other members of the court, on the ground that the clear intent of the testatrix, derived from the words of the will, read in the light of the facts and circumstances relating to the conditions of the family of the testatrix (Johnson et al. v. Edmond, 65 Conn. 495, 33 Atl. 503), is to provide for the support of her husband so as to bring the case within the third exception of the statute of 1899, referred to in the preWe have no occasion to determine whether vailing opinion. The words used were not we will adopt the so-called American doctrine literally in the language of the statute, for in its entirety or not, or to determine wheth- the will was executed more than a year pri er we will enlarge our law of spendthrift or to the passage of the act. Literal comtrusts as it stood prior to the act of 1899. pliance with the very words of the exception The statute is the only authority now known to our law for the creation of spendthrift trusts. While this statute exists our duty is satisfied in ascertaining whether a given trust is within or without it. is not required if the words in fact used indi- | v. Fair Haven & W. R. Co., 76 Conn. 689, 58 cate the intent to effect the purpose allowed Atl. 5. Whether or not the defendant's con by the statute. I think the rational construction of the words used requires such a construction. (95 Conn. 206) DUFF v. HUSTED. (Supreme Court of Errors of Connecticut. July 20, 1920.) 1. Appeal and error 927 (3)-On reviewing nonsuit, evidence considered in its most favorable aspect to plaintiff's case. In reviewing the propriety of a nonsuit, plaintiff's evidence is treated in the most favorable aspect to his case. 2. Negligence 136 (29)-Contributory negligence of boy six years old jury question. Whether contributory negligence is attributable to a boy six years old struck by an automobile while he was playing on the road is a question for the jury. duct was negligent rested upon these facts: His automobile, "going fast," was driven without warning signal of any kind and with no slackening of its speed, toward the place where seven or eight young boys were playing on the edge of the traveled road, shouting, in motion and noisily absorbed in and intent upon their game, and came into fatal collision with the plaintiff's decedent, who was one of the boys so engaged. We cannot say that in the situation so presented, and with the question of contributory negligence wholly eliminated by the age of the boy, the jury might not have found for the plaintiff. There is error, and a new trial is ordered. (95 Conn. 311) SAUTER v. MAHAN et al. (Supreme Court of Errors of Connecticut. Aug. 5, 1920.) 1. Municipal corporations 405-Assessment of benefits is exercise of taxing power. Assessment of special benefits against prop 3. Highways 184(3)-Negligence as to child struck by automobile held question for jury. In an action for the death of a six year old boy struck by defendant's automobile which was going fast and was driven without warning sig-erty, as from construction of a sewer, is an nal toward boys playing on the edge of a traveled road, held, that the jury might have found for plaintiff, so that nonsuit was improper. Appeal from Superior Court, Fairfield County; John E. Keeler, Judge. exercise of the power of taxation. 2. Municipal corporations 517-City cannot reconsider or rescind completed assessment. A city to which the state has delegated by its charter power to make assessments of special benefits from such improvements as a sewer without express grant to such effect has no power subsequently to reconsider or rescind a Action by James F. Duff, administrator, against John Augustus Husted to recover damages for causing the death of the plain-completed assessment lawfully made. tiff's intestate by the alleged negligent operation of the defendant's automobile, brought to the superior court in Fairfield county, where the plaintiff was nonsuited in a trial to the jury, and from the refusal to set aside this judgment the plaintiff appealed. Error, and new trial ordered. 3. Municipal corporations 204-Certificates of release of sewer liens signed by board secretary invalid. Certificates purporting to release and discharge liens securing special assessments for sewer benefits signed by the secretary of the board of water and sewer commissioners of the city, instead of by the mayor or the city clerk, as required by charter, were invalid. William L. Tierney, of Greenwich, and Edward J. Quinlan, of Norwalk, for appellant. Nichols C. Downs, of Stamford, for appel-4. Municipal corporations 990-Illegal release of sewer liens canceled at suit of taxpayer. lee. A taxpayer of a city has the right to have illegal votes reconsidering assessments on property for sewer benefits declared null and void, and to have the certificates of release of liens of the assessments canceled of record; the city having thereby wrongfully disabled itself from enforcing tax liens on their face valid and uncontested. PER CURIAM. [1-3] In determining whether the plaintiff's evidence should have been submitted to the jury, it is to be treated in the most favorable aspect to his case of which it is reasonably susceptible. So tested, the admission in the answer that the plaintiff's decedent died on the day he is said to have received his injuries, coupled 5. Municipal corporations 1000(6)-In taxwith the testimony as to their nature and payer's suit to cancel illegal releases of extent, would have warranted the inference liens, validity of assessments not determined. that death resulted from the injuries, while Collection of assessments on property for the boy's age (six years) left it exclusively sewer benefits having been intrusted by the city for the jury to say whether contributory to designated officials, a taxpayer, in his suit negligence was attributable to him. Lynch against the property owners, the city, and othv. Shearer, 83 Conn, 73, 75 Atl. 88; Rohloffers to cancel of record illegal releases of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |