(111 A.)

(95 Conn. 122)
HAYWARD et al. v. HAYWARD et al.

(Supreme Court of Errors of Connecticut.
July 20, 1920.)

1. Wills 561 (2)-Devise of testator's home included entire plant as developed by him; "home with all appurtenances."

the power of disposal of the principal by will. In the event of the failure of such disposition the principal was to pass to the testator's next of kin.

From the remaining two-thirds sufficient sums to care in perpetuity for his family burial lot in New London and to secure the annual payment of $5,000 to a Mrs. Noyer during her life were to be set apart for these purposes, and three-fourths of the remainder was to be held for the benefit of his son and

Will, in its devise of "my home at Eastern Point, with all its appurtenances," held to have included the entire elaborate home plant of testator, a multimillionaire, developed by him through years of planning, and all intend-only child, Henry Bradley Plant, he to re

ed to be used together.

2. Wills 685-Trustees' duty to maintain testator's home involved continuance of for

mer standards.

Duty to maintain testator's home plant, imposed upon the trustees to whom it was devised, held more comprehensive than merely to preserve the property in a condition fit for occupancy, and to involve keeping it in a condition reasonably conforming to the standard set by testator in his lifetime, including maintenance and replacement of furniture.

3. Wills 684 (5)—Maintenance of testator's home plant devised in trust charged to wife's, son's, and adopted son's share of income.

Under will whereby a millionaire testator devised elaborate home plant in trust, one-third of the cost of maintenance of the place held constantly chargeable to his wife's share of income, one-half to his son's, and one-sixth to his adopted son's, such burdens constituting a charge on the income, and through it on the principal of the three funds, respectively.

Case Reserved from Superior Court, New

London County; John P. Kellogg, Judge.

ceive the accruing income coming into the hands of the trustees, and the principal in four installments, to wit, one-fourth on his arriving at the age of 25, one-third of the balance on his becoming 30, one-half of what re

mained at 35, and the final portion at 40. Provision was also made in favor of Henry's issue should he die before reaching the age of 40, and he was given the power of disposition in case of his death without issue.

One-fourth of the two-thirds (reduced by the two inconsequential amounts as above indicated) was to be held for the benefit of the adopted son, Philip, upon substantially

the same terms and conditions as was provided for in the case of Henry's three-quarters share.

The remaining paragraphs of the will authorize the trustees to hold the trust estate without division, if they so elect, provide that the gift to the widow should be in lieu of dower, empower the executors and trustees in sundry matters of detail, and give various

directions to them touching the management

of the trust created by the will. These paragraphs possess no present importance, except the tenth and eleventh paragraphs, which are as follows:

Suit for instructions by Mae Cadwell Hayward and others, executors and trustees of the will of Morton F. Plant, against Mae "Tenth. I direct my trustees to continue to Cadwell Hayward and others. On reservamaintain my home at Eastern Point, Connectition for the Supreme Court of Errors. Supe-cut, with all its appurtenances, so long as my rior court advised relative to answering questions submitted to it.

Morton F. Plant, a resident of Groton, died November 4, 1918, leaving an estate estimated at upwards of $30,000,000, and a will dated October 16, 1918, and duly probated. There survived him his wife, now Mae Cadwell Hayward, a son, Henry Bradley Plant, the issue of his former marriage, and an adopted son, Philip Morgan Plant, who is the son of his surviving wife by her former marriage. His will, of considerable length, contains in its first five paragraphs gifts to various institutions and individuals of money amounting to some $575,000 and also of specific property. In the sixth paragraph the rest, residue, and remainder of his estate is given to the executors in trust for the following purposes and uses:

One-third of it to be held by them for the benefit of the wife during her life, she to receive its income during that time and have

son Henry Bradley Plant may wish to occupy the same as a permanent or summer residence, and to charge the expense of such maintenance proportionately against the income of the trusts hereby created for the benefit of my wife and sons, before ascertaining the net income from

such trusts.

"Eleventh. I authorize my trustees to continue to operate my farms, now known as Branford Farms, so long as they may deem it beneficial to the agricultural development of the country to do so, although such operation may not be profitable, and I direct that any expense of such operation be charged proportionately against the income of the trusts hereby created for the benefit of my wife and sons before ascertaining the net income from such trusts."

The testator at the time of his death owned 34 original parcels of real estate in Groton purchased by him of various persons and at various times, beginning in 1902. Some of these were located entirely separate and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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.

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.

After Mr. Plant's acquisition of these nine mainland properties, he took down the division walls and fences, and built a stone wall During the periods when the Bungalow around the land south of the road, and an- was occupied as stated, the family made use other around that lying north of it. These of the garage, stable, greenhouses, and other two tracts he proceeded at great expense to outbuildings standing on the tract south of the develop for his residential purpose. He highway. There were no separate outbuilderected buildings upon them all adapted for ings designed for use in connection with the use in combination for this purpose, and aft- Bungalow. The latter building has never erwards as long as he lived so used them. been used except for the purposes above inUpon the land south of the highway, and dicated and the two inclosed tracts above dethat portion of it comprised in his first pur-scribed, with the buildings therein, have alchase, he, during the years 1903 to 1905,❘ ways been used and managed by Mr. Plant 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

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- Upon them he constructed many buildings ford House resided, a fourth for the lodging used in the conduct of the farms, and had and feeding of men who worked in the green-ment and much valuable stock. His operathereon an extensive and expensive equiphouses, 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.)

"Fourth. Whether the provisions of article tenth of said will refer to and include the furniture and furnishings in said Branford House and in the Bungalow, providing the latter be

“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, however, these questions are examined and analyzed, they will be found to embody three fundamental inquiries, whose answers either supply or point quite unmistakably to the answers to be given to all of the questions upon which advice is sought. These fundamental questions are:

included in said provisions.

"Fifth. Whether the provisions of article tenth of said will do more than require the trustees to keep the buildings and premises in repair so as to prevent damage and deterioration and what they do require in such connection.

"Sixth. Whether the provisions of article tenth of said will require the trustees to pay the cost of operating the greenhouses connected with Branford House during the time said Henry Bradley Plant is not occupying the premises or during any other time.

"Seventh. Whether the provisions of article tenth of said will require the trustees to renew furniture and furnishings as the same may be damaged, worn, or worn out.

"Eighth. As to the meaning of the term 'maintain' in article tenth of said will.

"Ninth. Whether the provisions of article tenth of said will require the trustees to pay the taxes upon the property which is to be maintained thereunder out of the income of the trusts created for the benefit of the wife and sons of the testator before ascertaining the net income thereof.

(1) What property did the words, "my home at Eastern Point, Connecticut, with all its appurtenances," as they are used in the tenth paragraph of the will, embrace?

(2) What is the extent of the duty of maintenance which is cast upon the trustees as respects the property thus described? And

(3) How and in what proportions, as between different interests, is the expense incurred by the trustees, in complying with the testator's directions as to the maintenance of property, contained in paragraph 10, and as to the operation of "Branford Farms," contained in paragraph 11, to be borne?

[1] Reading the tenth paragraph in connection with the rest of the will, and in the light of the circumstances surrounding the testator when he made it, there can be little doubt that his purpose and intent in using the language employed to describe the property which he directed should be maintained for the occupancy of his son and only child during his life, or as long as he should wish to occupy it, was that it should embrace all of his Eastern Point property lying south of the highway, and upon which stands the Branford House, that north of the highway upon which the so-called "Bungalow" is "Eleventh. Whether the expense of the op-located, and the island lying off-shore and

"Tenth. Whether the expense of maintaining the home of the testator for the use of the defendant Henry Bradley Plant, as provided in article tenth of said will, is always to be charged against the income of the trusts created for the benefit of the wife and sons in the proportions existing at the commencement of the trusts, or whether the proportions are to be changed as distributions are made to the sons under the provisions of article sixth of said will.

eration of the farms known as Branford Farms, a short distance removed from the shore as provided in article eleventh of said will, is always to be charged against the income of the property above described, or, in other words, trusts created for the benefit of the wife and the entire property comprising the 10 origsons in the proportions existing at the com- inal tracts designated upon the map incormencement of the trusts, or whether the pro-porated in the record by reference as tracts portions are to be changed as distributions are A to J, inclusive. made to the sons under the provisions of article sixth of said will."

This property was manifestly planned and developed to constitute an entirety, and as

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

place of residence-his home. It was so
used by him until his death. Clearly the、
planning and execution of the plan had in
view as their controlling idea that a com-

Walter C. Noyes, of New York City, for de-
fendants Mae Cadwell Hayward and Philip
Morgan Plant.
Christopher L. Avery and Charles B. Wall-pletely appointed place of residence suited to

er, both of New London, for defendants Henry Bradley Plant and Amy Capron Plant.

PRENTICE, C. J. (after stating the facts as above). The plaintiffs, trustees under the will of Morton F. Plant, seek from the superior court advice concerning their duty in the execution of his directions contained in the tenth and eleventh paragraphs of his will.

the tastes and desires of a multimillionaire might be created. Each constituent part was designed to serve some purpose in the accomplishment of that result, and bore some relation to that result. Each was regarded as a part, and only as a part, of an entirety, and in fact played such part as long as Mr. Plant lived. With such a history, and such a purpose directing that history, it was natural, if not well-nigh inevitable, that Mr.

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.