author: Church, C. J.

text:
    White vs. Fisk and others.
    A testator, after bequeathing sundry legacies, made his will as follows:

      “ To the intent that the above gifts and other provisions of this will may be fulfilled, I bequeath all my property, both real and personal, to my friends A and B, esquires, in trust, that by sale or otherwise they may pay the aforesaid bequests, and in further trust, that the residue of my estate they may keep and manage in a prudent manner, or sell and invest, if necessary or prudent, and pay over the annual income of such property as follows:
    To my two daughters, C and D, for their sole and separate use, whether sole or married, each an equal sum, such as may be needed to maintain them comfortably in health, not exceeding two hundred and fifty dollars annually to each; and in case of sickness, such further annual sum as may be necessary to defray the costs and charges of such sickness.
    To my two sons, E and F, I give the rest and residue of the said annual income of my property, not exceeding two hundred and fifty dollars annually to each, for their respective lives.
    In case of the death of either of my said daughters, the annual payment to her shall be paid to her surviving sister, for her sole and separate use, not exceeding three hundred and fifty dollars per annum, unless sickness requires it. In case of the death of either of my said sons, the annual payment to him shall be paid to the surviving son.

      In case but one of said children shall survive, the amount paid such surviving child shall be the whole income annually received, provided it does not exceed six hundred dollars per annum, unless sickness requires it, during the life of such surviving child.
    Any surplus income that may remain, to the extent of one thousand dollars per annum, I direct'to be expended by my said trustees for the support of indigent pious young men preparing for the ministry in New Haven, Connecticut.
    If the net annual income of my estate, as above settled, should at any time exceed one thousand dollars, then the surplus income I direct to be paid, in equal portions, to the children of my present wife and their heirs. Before any of the payments herein named are to be made, my said trustees are first to be paid all expenses, and such reasonable sum for their care and trouble, as the judge of probate for New Haven district may from time to time order and allow.
    I appoint A my executor of this my last will and testament.”
    It was held, that the trust created by such will, is not perpetual, but expires upon the death of the survivor of the testator’s children.
    Held also, after the death of E and C, (a son and daughter of the testator,) that from the annual income of the estate of the testator, the sum of three hundred and fifty dollars is payable annually to D, (the surviving daughter,) during her life, for her sole and separate use; and in case of sickness, such further annual sum as may be necessary to defray the charges of such sickness. Subject to this payment, the sum of five hundred dollars is payable annually to F, during his life ; and in case of the death either of the said Ü or the said F, then to the survivor of them, during his or her life, the sum of six hundred dollars annually, and such additional sum as the sickness of such survivor shall require. If said income shall be more than sufficient to make the aforesaid payments, .then the difference between what may be necessary to make such payment and the sum of one thous- and dollars in any one year, is to be paid to the heirs at law of the testator. If the annual income has exceeded, or shall exceed one thousand dollars in any one year, such excess of income, beyond one thousand dollars, is to be paid, in equal proportions, to the children of the surviving widow of the testator and their heirs annually, so long as the said D or F shall live. But upon the death of both the said D and F, said trusts are to cease, and the estate of the testator then remaining, to be distributed to his heirs at law.
    A bequest in the following words, “ Any surplus income that may remain, to the extent of one thousand dollars per annum, I direct to be expended, by my trustees, for the support of indigent pious young men preparing for the ministry in New Haven, Connecticut,” is void for uncertainty.
    The principle of cy pres has never been incorporated into the equitable jurisprudence of Connecticut.

      This was a bill in chancery, brought to the superior court for New Haven county, by Henry White, as executor and trustee under the last will and testament of Samuel J. Hitchcock, deceased, asking for the aid and direction of the court in carrying into execution certain trusts created by said will, in relation to which the language of the will was ambiguous and doubtful in its meaning; and further praying,; that the legatees and heirs at law of the testator might be compelled to interplead and adjust among themselves, their! claims to certain portions of the testator’s estate and the'[ income thereof.
    The facts in the case were substantially these. On the 31st of December, 1840, the testator made his last will and testament as follows :
    “I, Samuel J. Hitchcock, of New Haven, do make my last will and testament in manner- following :—I order my just debts and funeral expenses to be paid.
    I give to Henry White, Esq., six hundred dollars, in trust, to be paid to the use of the Domestic Missionary Society of Connecticut, or to be expended for the objects which said society, by the terms of its association, was organized to pursue.
    I give to my wife, Narcissa P. Hitchcock, all the property, or the amount thereof, which I have received from her estate. I do this in pursuance of my marriage contract with her, dated December’24, A. D. 1834, and in order to fulfill the same.
    To the intent that the above gifts and the other provisions of this will may be fulfilled, I bequeath all my property, both real and personal, to my friends Roger S. Baldwin and Henry White, Esquires, in trust, that by sale or otherwise, they may pay the aforesaid bequests, and in further trust, that the residue of my estate they may keep and manage in a prudent manner, or sell and invest, if necessary or prudent, and pay over the annual income of such property as follows:

      To my two daughters, Laura and Mary, for their sole and separate use, whether sole or married, each an equal sum, such as may be needed to maintain them comfortably in health, not exceeding two hundred and fifty dollars annually to each, and in case of sickness, such further annual sum as may be necessary to defray the cost and charges of such sickness.
    ■ To my two sons, George and Charles, I give the rest and residue of the said annual income of my property, not exceeding two hundred and fifty dollars annually to each, for their respective lives. <t

    In case of the death of either of my daughters, the annual payment to her shall be paid to her surviving sister, for her sole and separate use, not exceeding three hundred and fifty'dollars per annum, unless sickness requires it.
    In case of the death of either of my said sons, the annual payment to him shall be paid to the surviving son.
    In case hut one of said children shall survive, the amount paid such surviving child, shall be the whole income annually received, provided it does not exceed six hundred dollars per annum, unless sickness requires it, during the life of such surviving child.
    Any surplus income that may remain, to the extent of one thousand dollars per annum, I direct to be expended, by my said trustees, for the support of indigent pious young men, preparing for the ministry, in New Haven, Conn.
    If the net annual income of my estate, as above settled, should at any time exceed one thousand dollars, then the surplus income I direct to be paid, in equal portions, to the children of my present wife, and their heirs.
    Before any of the payments herein named are to be made, my said trustees are first to be paid all expenses, and such reasonable sum for their care and trouble as the judge of probate for New Haven district, may, from time to time, order and allow.

      I appoint Henry White, Esquire, my executor of this my last will and testament. Dated December 31st., A. D. 1840.
    Samuel J. Hitchcock. • [l. s.]”
    The testator died, on the. 31st of August, 1845, and his said last will and testament was duly proved and approved. The plaintiff took upon himself the execution, and accepted the trusts thereof. The other trustee refused to act.
    At the time of making the will in question, the testator was married to Mrs. Narcissa P. Hitchcock, who survived him. He had four children by a former wife, all of whom are named in the will—viz., Laura—since deceased—Mary, the wife of Thomas D. Sherwood, and two sons, George and Charles. Laura died on the 31st day of March, 1851, and George died on the 29th day of July, 1850. The testator also left a minor son by his surviving wife, Samuel Whittemore Hitchcock. At the date of the will, Mrs. Hitchcock had three children by a former husband, who all survived the testator—viz., Narcissa P., the-wife of Robert F. Fisk, Emily P., the wife of William K. Mehaffey, and Julia P., the wife of Leon Pilatte.
    After paying the debts of the testator, and the bequests to the Domestic Missionary Society and to Mrs. Hitchcock, the estate amounted to about forty thousand dollars; and the annual income of the same, after defraying the expenses of the trusts, exceeded two thousand dollars. This income was not exhausted by the annuities bequeathed to the daughters of the testator, and his sons, by the first wife.
    At the time when the bill was brought, there were indigent pious young men in New Haven, Connecticut, preparing for the ministry, of the same religious denomination and doctrinal opinions with the testator, whose support would greatly exceed one thousand dollars per annjam. In his lifetime, the testator was accustomed to contribute frequently, for the support of young men of the same description with those named in the charitable bequest. The testator was a mémber, and for more than ten years previous to his death, an officer, of the First Congregational Church in New Haven, and his faith was the same with that of the Congregational denomination of Christians in this state. There were also pious indigent young men in New Haven belonging to the several denominations of Episcopalians, Methodists and Baptists, preparing for the ministry. But the number was small,' compared with the number belonging to the first named denomination.
    At the date of his last will, the property of the testator was of the value of about twenty thousand dollars, and the yearly income thereof did not exceed one thousand dollars.
    The marriage of the testator with the wife who survived him, took place on the 24th day of December, 1834, at which time they entered into the following contract:
    “Samuel J. Hitchcock and Narcissa P. Whittemore, having mutually agreed to be united in marriage, in consideration thereof do further agree, that if the said marriage shall take-place, and the said Narcissa shall survive the said Samuel, then, instead of dower or any other claim upon the estate of the said Samuel, the said Narcissa shall be entitled to the principal of all the property she now owns, or an equal amount in value, to be thenceforth to her own use forever. And if the said Narcissa should decease, during the life of the said Samuel, then so much of the said property as the said Narcissa shall, by will, in writing, order and direct, shall, after the death of the said Samuel, be divided among the children of the said Narcissa and the said Samuel, in such shares and proportions as the said Narcissa shall, by her said will, order and direct. Or, if the said Narcissa shall prefer to bestow upon her three daughters, such a sum only, as shall be equal to the amount which the said Narcissa has received from the estate of their father, and shall give the residue of her said property to the said Samuel, then said bequests shall take effect, immediately, under said will. An inventory of said property shall be made out and annexed to this instrument, as soon as convenient ; and any changes which shall be made in said property, shall, from time to time, be mentioned in said inventory, and shall be considered property subject to this agreement, and made in fulfillment thereof. This agreement is made, and to be construed, according to the laws of the state of Connecticut; and all proper instruments shall be executed, which are necessary to give it effect upon said property, wherever the same may be situated.
    Dated the 24th day of December, A. D., 1834.
    Samuee J. Hitchcock,
    Narcissa P. Whittemore.”
    At the time of said intermarriage, there came into the hands of the testator, of the property belonging to the said Narcissa P., $7,445.33 in real estate, and $29,383.60 in personal estate; and of the property of the said Narcissa P. Fisk, the sum of $11,858.61; of the property of the said Emily P. Mehaffey, the sum of $13,553.94; and of the property of the said Julia P. Whittemore, the sum of $11,079.94. The testator then being guardian of the three daughters of his wife, who were minors and unmarried, all the said property of the said Narcissa P. and of her minor daughters remained in his hands, and under his management and control until his decease, and was by him properly invested, in the names of his wife and her three daughters respectively. By the use of the property of his wife, his own estate was essentially benefited ; but it was not benefited by the management and control of the property of her daughters.
    After the decease of the testator, and in the same envelope with his last will, was found another will of earlier daté, duly executed by him, and uncanceled. But this fact was not particularly relied upon.
    The claims of the parties, as stated in their several answers, will sufficiently appear from the arguments of the counsel.
    The question, as to what decree should be passed in the cause, was reserved for the consideration and advice of this court.

      Baldwin for the plaintiff.
    1. The leading object apparent on the face of the will, was to apply his whole probable income ($1,000) annually to the support of the testator’s four dependent children during their lives; and, primarily, to secure out of it for his daughters, a certain support in sickness and in health.
    After providing for the fulfillment of his marriage agreement and bequeathing $600 to the missionary society, the will has respect only to the management of his estate and the distribution of the annual income. Of the estate itself he makes no disposition, except as he bequeaths it to his trustee, “to the intent that the above gifts and the other provisions of his will may be fulfilled.”
    2. The provision for his children appears to have been so made as to secure to them, as far as possible, an annual income, which could not.be anticipated, aliened, or taken by creditors.
    The amounts payable to the daughters were measured by their wants, not exceeding $250 each, in health, and as much more as might be needed in sickness.
    The sons could have no claim to any part of the income, till the annual expenses of the daughters, in case of sickness, were paid.
    3. Having provided that in the event of the death of a daughter, the surviving daughter’s income should be increased only to $350, besides expenses of sickness—the testator, to prevent any accumulation'of surplus income undisposed of, and to give the benefit of it to a class of persons whom he had been accustomed to aid—directed, that any surplus of his income, to the extent of $1000, that may remain, shall be expended by his trustees, for the support of indigent pious young men preparing for the ministry in New Haven.
    4. And if at any time, his estate should yield more than a net income of 1,000 dollars, thus settled on his children and contingently applicable to the charitable use, with the same intent of preventing an accumulation of surplus income during the lives of his children, to go, if undisposed of, to his heirs at law, he directs such surplus to be paid, in equal portions, to the Whittemore children, and his son Samuel, and their heirs.
    The question then arises, how long is the trust to continue ? and what is to become of the estate when the annual income shall no longer be needed for the four children of the testator ?
    We claim, that the trust will continue till the death of all the four children, and will then terminate, leaving the estate to descend to the heirs at law.
    First, it was created “ to the intent that the provisions of the will may be fulfilled,” all of which, except the payment of the two preceding bequests, had reference to the annual distribution of the income only. To that intent, it must continue till their death; since, while one remains, the whole income may be needed for him. The form of the bequest to the trustees, apparently contemplates a trust that may be fully executed by them.
    Secondly, there being no provision for the distribution of the estate, and the provisions for the pious indigent young men and for the children of his second wife, being made only from any contingent surplus of annual income, remaining after the payments to the primary objects of the testator’s bounty, it is supposed that the trust must cease on their death. It must either cease at that time, or become a perpetuity. Assuming the validity of the bequest for the pious indigent young men, if the trust for the surplus over the-first $1000 continues for the children of Mrs. Hitchcock, it must equally continue, to the extent of the first $1000 of income for the pious indigent young men.
    There is no principal or capital, bequeathed to the children of Mrs. Hitchcock. What they take, they are to receive annually from the trustees. It may' be, that the entire income may be required to fulfill the bequest for the pious indigent young men, which is equally unlimited in time, and prior to the other.
    If that bequest is valid and continues, the trust must also continue, for the income is to be annually expended by the trustees, who must necessarily select the beneficiaries.
    It would follow, that the trust for the children of Mrs. Hitchcock, would be a perpetuity, incapable of being administered, and consequently void.
    It is not to be presumed to have been so intended.
    Our construction leads to no such absurdity. It leaves the estate to descend to the heirs at law, which, it is to be presumed, would be the desire of the testator, when the annual income was no longer required for his children.
    In regard to the validity of the charitable bequest, it is sustained by all the authorities, and would have been held to be valid, if no trustee had been appointed to administer it. See 2 Sto. Eq., sec. 1137, 1148, 1154, 1158, 1162, 1169, 1191. The American Bible Society v. Wetmore, 17 Conn. R., 181. Griffin v. Graham, 1 Hawks, 96. Bartlett and others v. King, executor, 12 Mass. R., 537. Vidal et al. v. Girard's executors, 2 How., 127. Loscomb v. Wintringham, 7 Eng. Law & Eq., 164 and note. Dutch Church in Garden Street v. Mott, 7 Paige, 77.
    During the existence of the trust, we claim, that the individual objects are to be selected, and the sums expended for each by the trustee, according to his discretion.

      And if, any year, there are none who answer the requirements of the will, that the surplus shall accumulate and be expended on future objects as they arise.
    It is the annual surplus beyond the 1000 dollars only, that is to be paid to the children of Mrs. Hitchcock, by the trustees, so long as the trust continues.
    At its determination by the death of the four children for whose support it was created, the estate itself, not being disposed of by the will, descends to the heirs at law of the testator.

      C. A. Ingersoll, for Sherwood and wife, and Charles Hitchcock.
    The income of the estate -of the testator placed in the hands of the trustees, is first to be applied to the support of Laura and Mary, his daughters.
    1. Laura, one of thé daughters, being dead, Mary (now Mrs. Sherwood) the other daughter, is now entitled to receive not only that which was provided for her during the life of Laura, but in addition thereto, the sum of 350 dollars a year.
    The limitation of 350 dollars a year is not a limitation of the whole income, which Mrs. Sherwood is to receive, but only a limitation to the addition which she is to receive upon the death of Laura.
    2. The trust in favor of the indigent pious young men, is a perpetual trust, to continue forever, and is therefore void.
    It is void also for uncertainty. It can not be carried into effect. The objects of the trust are not sufficiently pointed out. You can not ascertain the testator’s particular intent. Gallego v. Attorney General, 3 Leigh, 450. Bridges v. Pleasants, 4 Iredell Eq. R., 26. Moggridge v. Thackwell, 7 Vesey, 50, note a. Morice v. The Bishop of Durham, 9 Vesey, 399. Vezey v. Jamson, 1 Sim. & Stu., 69.

      3. If the trust in favor of the pious young men is to be executed, it can only be executed, cy pres; and it can not be executed, in this country, in that manner. The courts in this country do not go the length that they do in England, in executing a charity, cy pres. Here, the particular intent must be clear. Executors of Burr v. Smith et al., 7 Vermont, 241. Vidal v. Girard’s exrs., 2 Howard, 127,
    4. As to the rule in England, see 1 Jarman on Wills, 247. Moggridge v. Thackwell, 7 Vesey, 69. 2 Sto. Eq., § 1181, 1167, 1168, 1169, 1170. Mills v. Famer, 19 Vesey, 486, 487. Loscomb v. Wintringham, 7 Eng. L. & E. R., 164.
    As to the American rule, see note 1 to 1 Jarman on Wills, § 274, 216. 4 Kent’s Com., 508. McCarte v. Orphan Asylum Society, 9 Cowen, 437. Moore v. Moore, 4 Dana’s Ken. R., 357. Dashiell v. Attorney General, 5 Harr. & John’s, 392. 4 Kent’s Com., 508, note a.

    5. The trust to the pious young men being void, as it has not been sufficiently created, the next of kin must take. What therefore was intended for them, must go to the heirs at law. 2 Sto. Eq., § 1183.
    6. The trust in favor of the children of the wife of the testator is not sufficiently created. It is void, for two reasons. 1st, it is a perpetuity ; 2d, it is void, because there is no practical way of carrying it into effect. It could not be carried into effect, if the trust is a perpetual one.
    7. The trust being void, what was intended to be bequeathed, goes to the heirs at law.
    8. If either the trust in favor of the pious young men, or in favor of the children of Mrs. Hitchcock, is void, on the ground that it is a perpetual one, both must be void: one can not be good and the other bad.
    9. If the bequest to the pious young men should be declared valid, then, if in any one sense the income belonging to such trust shall be unclaimed or unapplied, such income so unclaimed or unapplied shall go to the heirs at law.

      Dutton, for S. W. Hitchcock.
    The counsel for S. W. Hitchcock adopts the brief of the counsel for Robert Fisk, with the following qualifications.
    1. When the testator made his first will, he supposed the income of his property would not exceed 1000 dollars. Supposing that there could be but a small surplus, if any, he gives that to the indigent young men.
    2. After his second marriage, in view of the benefit which he would derive from his wife’s property, and supposing that if the income of his property should exceed 1000 dollars, it would be owing to that, instead of giving the surplus to the indigent young men, he gives it to his wife’s children.
    The words “settled as above,” refer to the bequests to his children, according to the usual meaning of the words.
    3. If the devise to the indigent young men is void, the amount which would have gone to them is intestate, and S. W. Hitchcock will take one-third, so far as it is devised from real estate, and one-fifth of what is devised from personal estate. He would be an heir to the real estate of the deceased children, it being ancestral.
    4. The devise to the indigent young men was to continue only as long as the devise to the children of his first wife would continue.
    5. If the devise to the children of his second wife was a disposition in fee, S. W. Hitchcock would take one-fourth of it, there being four children.
    6. If the same devise would last no longer than while there is a “ surplus,” that is, while there is an income, a portion of which is first given to some one else, then S. W. Hitchcock takes one-third of the real estate, and one-fifth of the fee-simple estate, as heir at law.

      R. I. Ingersoll and Beach for Robert F. Fisk and wife, Wm. K. Mehaffy and wife, and Leon Pilatte and wife.

      First. During the joint lives of Charles and Mary, Charles takes not exceeding $500, and Mary not exceeding $350 annually, unless in case of sickness of the latter. If either daughter die, the annual payment to her is to be paid to the surviving daughter. The addition to the survivor is what was given to the deceased. But upon the construction claimed, the survivor takes not only the portion of the deceased, but $100 more. The testator did not intend that the legacies to his children should in any event exceed $1000 per year, but on the construction claimed, Charles taking $500, if Mary takes $600, the legacies amount to $1100 per year.
    The only construction of this clause consistent' with the subsequent provisions of the will, is, that Mary takes but $350 in the whole, unless sickness requires it.

      Secondly. The bequest to the pious indigent young men is vague, uncertain and void.
    It is impossible to determine, who were the objects of the testator’s bounty, to designate who are pious, who are indigent, who are young, within his meaning, or what kind of preparation, or what ministry he meant.
    If the bequest is valid, “any surplus income that may remain to the extent of $1000 per annum” means the difference between the annuities to the children, and $1000. He supposed the income of his estate, at the time of his making the will, (as was the fact) would be about $1000.
    In the contingency of one or more of his children dying, the annuities would vary from $600 to $850. Tt is the contingent surplus between these amounts and $1000, which the testator was contemplating in this bequest. If the clause by itself is ambiguous, the succeeding clause relieves it from all embarrassment. “ If the net annual income of my estate, as above settled, should at any time exceed $1000, the surplus I direct,” &c. “ As above settled,” i. e., he has given part of the $1000 to his children, and part contingently to the indigent young men. It can'at no time be less than $1000: he now provides for its exceeding that sum.
    This clause is consistent with our construction of the preceding one, and inconsistent with any other construction, and being the last clause in the will, must control.

      Thirdly. Whether the bequest is valid or invalid, the trust ceases on the death of the annuitants.
    It is only a contingent surplus, remaining after paying .the annuities, which is given to the indigent young men.
    Suppose the annuities to the children, together with sickness expenses, should absorb the entire $1000, up to the death of the surviving annuitant: would the indigent young men, under this contingent bequest, (the contingency never having happened,) be then entitled to the whole $1000 by virtue of this bequest of “ the surplus that may remain ?”°

      Fourthly. During the continuance of the trust, the Whittemore children are, at all events and under all circumstances, entitled to all the surplus income over $1000 per year.
    The language used is too explicit to admit of doubt or question. In giving the annuities and the bequest to the indigent young men, the testator carefully guards, that in no event, they shall exceed $1000 per annum.
    The only remaining question presented by the bill, is as to the disposition of the principal of the estate, after the trust ceases.
    It will be time enough to decide this question, when it legitimately arises. It may be half a century hence, when the last annuitant dies. Let the point be then settled, by the parties.then in interest; amicably if they can, if not, let them and the court which is to pass upon their respective rights, have the mutual benefit of the presence of the parties who are to be affected by the decision. If, however, that question is to be considered, we claim that after the trust ceases, the children of the testator’s (then) presént wife and their heirs, are entitled to the principal in fee.
    They will them be entitled to the income of the whole.
    The devise to them and their heirs, is not of the excess over $1000 per annum, but if the income exceeds $1000 per annum, he gives “ the, surplus” to them and their heirs, using the word with the same meaning as in the preceding clause, i. e., all that may remain after satisfying the previous exigencies of the will. The testator intended, by this clause, to indicate his wishes as to the disposition of the residue of the estate, after the preceding provisions, of the will were satisfied.
    If we are right in our claim, that upon the cessation of the trust, the Whittemore children would be entitled to the whole income, the law will vest in them the principal of the whole estate in fee.
    1. This would be so, even if there were no words of limitation. Challenger v. Shephard, 8 T. R., 597. Elton v. Sheppard, 1 Bro. C. C., 532. Phillips v. Chamberlain, 4 Vesey, 51. Rawlings v. Jennings, 13 Vesey, 39. Adamson v. Armitage, 19 Vesey, 418. Stretch v. Watkins, 1 Madd., 253. Clough v. Wynne, 2 Madd., 188. Haig v. Swiney, 1 Sim. & Stu., 490. Hawkins v. Hawkins, 7 Sim., 178. Clarke v. Gould, 7 Sim., 197. 2 Williams on Exrs., 1027. Earle v. Grim, 1 John. Ch., 494.
    2. It is an established rule, that a devise of the rents and profits, is a devise of the land. Kerry v. Derrick, Cro. Jac., 104. Maundy v. Maundy, 2 Stra., 1020. Allen v. Backhouse, 2 Ves. & Beam, 74. 6 Greenleaf’s Cruise’s Dig., 176, n. Reed v. Reed, 9 Mass., 372. Goldin v. Lakeman, 22 E. C. L. R., 22.
    3. When the whole estate is given in trust, to pay the income to one and his heirs, the fee passes. The statute of uses in force in this state, executes the use in the cestui que trust. 1 Sw. Dig., 138. Kirby, 368.
    This principle has been uniformly recognized by courts of equity. See cases above cited, also, Page v. Leappingcott, 18 Vesey, 462. Barr v. Scott, 2 Leigh, 356. Knight v. Selby, 3 Man. & Gr., 92. Logan v. Moore, 7 Dana, 74. 6 Greenleaf’s Cruise’s Dig., 211.
    4. If the Whittemore children are not entitled to the whole of the principal, they are entitled to all the principal, over and above such part thereof as would produce $1000 per annum. The most unfavorable construction can not but concede, that the surplus income over $1000 is given to them and their heirs.
    Under the foregoing rules of construction, they will be entitled to such proportion of the principal of the whole estate, as the income to which they are entitled, bears to the whole income.
   Church, C. J.

Alate writer on the law of devises has remarked, that gentlemen of the legal profession should seldom draw up their own wills, as many such have been the subjects of litigation, and of the most difficult interpretation. The propriety of this suggestion is, in some degree, verified in this case.

The late Judge Hitchcock, whose will we are considering, was one of the most learned and distinguished members of the Connecticut bar; and yet, we find his executor, and trustee, himself also a lawyer of great ability and professional experience, presenting this will to this court, and asking its direction, how he may safely execute .the duties and trusts imposed upon him by it. Under such circumstances, we too may well doubt what advice to give.

There are several prominent facts apparent as well on the face of the will, as disclosed by the evidence, properly admitted by the superior court, which have an important bearing upon its construction and its application to the testator’s family and estate. He seems to have believed, that the annual income of his property would be about one thousand dollars, and to have assumed this, as a proximate basis of his bequests to his children, apparently so scanty, when in truth, this income proved to be more than double that sum. Aside from his bequest to the Domestic Missionary Society of Connecticut, he has made no ultimate disposition of any part of his own property, but has confined himself to the bestowment of its supposed annual income, leaving the principal, apparently unthought of, or at any rate undisposed of, expressly or by any appropriate language used by him.

The sons and daughters named in the will, wrere the testator’s children by a former wife. By his surviving widow, Narcissa P. Hitchcock, he had a son Samuel W. Hitchcock, and his wife Narcissa had several children by a former husband ; all these survived the testator, and are claimants under his will, and respondents in this bill.

He seems also to have forgotten, that some of his children by his first marriage, named in his will, might die, leaving children, and be left unprovided for, while the trusts in his will continued, as has already proved true, as we are informed, since the arguments in this case were heard by us.

The testator was a member of a Congregational church in New Haven, and so were both the persons constituted by him to be the executors and trustees of his will.

The provision-for the daughters, Laura and Mary, is quite intelligible, although a seeming obscurity is thrown over it by the language, “ such as may be needed to support them comfortably in health,” &c., which .may seem to imply a power and discretion in the trustees, to examine constantly the exact ’necessities of these children, and measure their disbursements accordingly, or even to reduce them to nothing, if the children, by marriage or otherwise, should be raised above want or actual indigence, thereby depriving them entirely of this parental bounty. We do not believe the testator intended any such thing; and we think this should be considered and treated as an absolute bequest of two hundred and fifty dollars annually to each of these daughters, so long as both should live, and as much more to each one respectively, as might be necessary to defray the cost and charges of her sickness; and upon the death of either, that the survivor should receive three hundred and fifty dollars, or one hundred dollars in addition to the sum first given, annually, during her life, with the same allowance for sickness expenses. Laura has since died; upon which event, Mary, the survivor, became, and is, entitled to, the aforesaid sum of three hundred and fifty dollars, and sickness expenses. The sums thus specified, the testator supposed necessary to support these daughters comfortably in health.

The bequests of income to the two sons of the testator, George and Charles, are equally free from doubt. To each, the sum of two hundred and fifty dollars annually, during their lives, and five hundred dollars to the surviving son. And then, if only one of these four children shall survive the rest, he shall be entitled to the sum of six hundred dollars annually, and no more, for his life, unless sickness shall require a larger sum. Since the testator’s death, his eldest son has deceased, and the survivor, since then, has been entitled to receive five hundred dollars per annum.

It will be seen, that in making all these bequests to these four children of his first wife, they are given for their respective lives, no part or portion going over to their children or heirs.

We can not believe that Judge Hitchcock intended to disinherit such lineal descendants; and we should very reluctantly be brought to give a construction to this will, which would produce such a result.

Whether the bequest to the young men, hereafter to be noticed, be valid or void, it becomes necessary to determine by what rule the testator intended the amount of it to be annually ascertained. The clause in the will referring to this subject, is, that “Any surplus income that may remain, to the extent of one thousand dollars per annum, 1 direct to be expended, by my said trustees, for the support of indigent pious young men, preparing for the ministry in New Haven;” from which it has been inferred, that one thousand dollars of such surplus income, if so much there should be, was intended for this object; but the next following clause of the will shows, we think, that such was not the purpose of the testator; for in it, he says, that “ If the net annual income of my estate, as' above settled, should at any time exceed one thousand dollars, then the surplus income I direct to be paid in equal portions to the children of my present wife;” from which it is obvious, that he intended that one thousand dollars should satisfy the legacies before given to his four children, and also the bequest to the indigent young men, because he gives the surplus beyond that to an entirely different class of legatees—his wife’s children. We think, therefore, that the sum intended for the indigent young men, was the annual difference between the sums expended upon the testator’s four children above named and one thousand dollars. Such sum or difference, if this bequest be valid, is payable to them, and if not, it is intestate, undisposed of by the will, and is payable to the heirs of the testator.

A more interesting and perplexing inquiry than any other suggested by this will, is, whether this bequest to the pious indigent young men” can be sustained and carried into effect ? All the parties who, on this record, make claim before us, unite in saying that it can not. And the trustee only asks us, whether it can? We think it cam not be sustained.

And while we acknowledge the benevolent and charitable intention of the testator in this gift, and the laudable purpose he conceived, we can not see how, confining ourselves within what we believe to be our legitimate powers of interpretation and judgment, we can carry that intention into effect.

This legacy is not given to any college or institution, nor to any association of persons corporate or voluntary; nor is any such alluded to, by which the charity can be dispensed; but only as a legal interest to trustees, to be sure, to* be ex pended or disbursed for the support of individuals, each one of whom falling within the description named, has an equita ble or beneficial interest in the fund, and which he must have a right to enforce, if any one can. And who are these individuals ? They are the indigent pious young men, preparing for the ministry in New Haven. The difficulty of carrying this provision into effect, is as great as if no trustee had been appointed; for no rule of determination, selection or apportionment, is furnished by the will, and no positive or discretionary power of determination, &c., bestowed.

It has been suggested, that the power of selecting the beneficiaries under this bequest, and of apportioning the sums of money annually to be disbursed among them, is in the trustees. We do not so understand it. Their only power is to expend the money—to pay it out, to the persons entitled, under the will, to receive it. Such a power can not legally be inferred from the fact, that the testator, and the trustees appointed by him, were members of a Congregational church in New Haven; and for us to infer it from this fact, would be to substitute a very liberal conjecture, in the place of legitimate interpretation of language and legal judgment.

Who, then, are entitled to this bequest; or, if the trustees have the power suggested, how can they exercise it ? What is meant by “indigent young men ?” No rule of discrimination is given. And who but Him that knoweth the heart can determine, who are the pious ones intended by the testator ? Surely, he did not intend all who merely make professions of piety. And what was meant, by preparing for the ministry in New Haven? Was it a preparation, by a course of theological or academical study ?

If a bequest, for the purpose indicated in this will, in this respect, had been made to a college, a theological institute— the Congregational society of which the testator was a member—or other body which had, or might have, a supervision or interest in the general object of this charity, and rules for its management, it would have presented a very different case; but as it is, we think the provisions of this will in this matter, have been left by the testator quite too loose and indefinite for judicial action.

Our statutes of descent and distribution have established rules for the distribution of estates, founded upon what are supposed to be the ordinary principles and. impulses of natural affection and of equity ; and, in the absence of other evidence, these may well be followed, as the best exponents of intention.

Every man has a right, by his last will and testament, to change these laws in his own case, and make a law for himself, if he will; but to do this effectually, he must not only observe prescribed formalities with exactness, but he must speak in a manner leaving no reasonable dbubt of his purpose ; and if he does not do this, the general and prescribed laws should be permitted to have their just and equitable effect.

There is a class of cases, the authority of which we recognize, where the individual beneficiaries under a will, but included in a definite class, are left uncertain, and yet the bequest for their benefit has been sustained. But these are cases, where the gift has been t.o some corporate or voluntary association, whose business and duty it becomes, to dispense the charity; or where power is very certainly conferred by the will, upon the executor, trustee, See., to discriminate and select, or to apportion the application of the funds. Such was the case of Bull v. Bull, 8 Conn. R., 48, in which a remainder was bequeathed to executors, in trust for the most needy of the testator’s brothers and sisters, with express authority and power to the executors to make distribution to the most needy, according to their best discretion. “ Here,” says the court, “ a rule is given by which the persons cari be designated”—the most needy.

The same discretionary power was expressly conferred in the cases of Gower v. Mainwaring, 2 Ves., 87; Moggridge v. Thackwell, 7 Ves., Jr., 36; 13 ib., 416; Attorney General v. Price, 17 ib., 371; Witman v. Lex, 17 Serg. & Rawle, 91; in which last case, the court recognizes the principle, that bequests for uncertain objects, &c., may be sustained, where there is a discretionary power vested anywhere over the application of the charity. 9 Ves., 399. 10 id., 522. 1 Sim. Stu., 69. But no such discretionary power, as we believe, is given by this will.

Our courts have recognized the validity of charitable be “ quests, not only where the gifts have been to a person or corporation, having a legal capacity to take, but also to voluntary unincorporated associations existing for benevolent or charitable purposes, and have supplied these latter with trustees to receive, hold and manage the funds given for the uses designated, even though these were somewhat undefined and uncertain. And so also, bequests to individuals or classes of individuals, in nature of charities, where the testator has clearly given a power to some person or persons, to exercise a discretionary authority in their management, so that uncertainty may be made certain ; and it is believed .that we have gone no further in this direction. American Bible Society v. Wetmore, 17 Conn. R., 182. Bull v. Bull, 8 Conn. R., 48. Burr v. Smith; 7 Vt. R., 241. Reformed Dutch Church v. Mott et. al., 7 Paige Ch., 77. Inglis v. Sailor's Snug Harbor, 3 Peters, 99.

Our revised statute (tit. Land, 454) recognizes these charitable and pious purposes and uses, and protects them ; but it seems, by fair intendment, to require that they shall be reasonably certain and definite; for its language is, they “ shall ever remain to the uses to which they have been, or shall be, given or granted, according to the true intent and meaning of the grantor, and to no other use whatever.” To carry out this provision of the law, the intention of the donor must be certain, as well as the objects of his bounty reasonably definite, and the charity confined to the very use to which it was destined.

There may be other cases in this country, and there certainly are many in England, in which charities, more equivocal and uncertain than the one we are considering, have been sustained; but we are persuaded that this has been done either avowedly, or under the influence of the principie of cy pres. Several such cases have been brought to jour notice on this argument; but we repel the authority of jihem, as we have not adopted that, principle into our system i'ef jurisprudence. We think it inconsistent with the limited and defined powers of the judiciary, as understood and approved in this state.

By the theory of the English constitution and laws, the king is parens patriae, the guardian of infants, the dispenser of charities, and his chancellor, as the keeper of his conscience, acts in his stead. The doctrine of cy pres, is a doctrine of prerogative ; and it seems to be this, that if it can be seen that a charity was intended, by a testator, but the object specified can not be accomplished, the funds may be applied to other charitable purposes, or that the chancellor may seize them as a sort of waif, and apply them as his, or the king’s good conscience, shall direct. 2 Sto. Eq., 424, § 1182. In this way the chancellor substitutes himself in the donor’s place, and really makes the will himself. This doctrine is inconsistent with the plain provisions of our statute, above referred to, on this subject, and which forbid the perversion of the charity; and the English judges have themselves expressed fears of the tendency of the power.; “ This doctrine,” says Lord Kenyon, in Brudenell v. Elewes, 1 East, 451, “has not been much approved, and we must see that it does not run wild;” and Lord Chancellor Eldon, in 7 Yes., 399, says, “ it is not proper to extend it one step further.” 1 Maddock’s Ch., 49. Cooper’s Eq. Pl., 27. 2 Fonbl. Eq. Ch., 1, § 1. Lord Falkland v. Bertie, 2 Vern. R., 342. 3 Peters, U. S. R., app., 481. Trustees of Baptist Association v. Hart, 4 Wheat., 1.

It is true, that the later cases in England have modified, in some measure, the former extreme administration of the principle of cy pres.

The charity intended for the indigent young men, being, in our opinion, too vague and uncertain for. effect, a question is suggested here—to whom shall the moneys intended for them be paid 1

The testator has directed, that the surplus income of his estate, beyond one thousand dollars, shall be paid, in equal portions, to the children of his then present wife, Narcissa, and their heirs. But it is evident, that the testator did not intend, that any portion of this one thousand dollars should go to the children of his wife—there being no unexpended residuum of this sum. It must therefore, as we have already intimated, be treated as intestate, and be distributed to the testator’s heirs. Green v. Dennis, 6 Conn. R., 292. Brewster v. McCall’s Devisees, 15 Conn. R., 274. Baker v. Hall, 12 Ves., 497. Jones v. Mitchell, 1 Sim. & St., 290.

This trust is not a perpetual one, and was not so intended. The chief object of the testator in creating it, was, that his first four children should be provided for, from the annual income of his property, during their lives; and he looked to the 1000 dollars for this purpose, and all beyond, he considered as uncertain; and yet directed, if there should be a surplus income, above the 1000 dollars, that such surplus should be annually paid to the children of his wife, Narcissaj and their heirs. But we think it obvious, from the whole tenor of the will, that he did not intend that these annual payments should continue, beyond the time when there was no one surviving, who could take any part of the first thousand dollars. If he did, the bequest would be, that this annual income of 1000 dollars would be an accumulating fund forever, with no one to take it; and the principal of the estate must remain, too, as a fund to raise the surplus income for the children of his wife, Narcissa, and their heirs.

We do not suppose this was intended by the testator; and if it was, such purpose can not be executed. The law will not sanction a perpetuity, thus created for a private interest, and not for a charity. 1 Jarman on Wills, 219, 264.

If the trust expires, upon the death of the survivor of the testator’s children by his first marriage, his intention in respect to all his children will best be fulfilled. If there be a surplus beyond the annual income of one thousand dollars, while the trust continues, all the children will receive their respective portions of income at the hands of the trustees, according to the provisions of the will, as we understand them, and according cto law; and upon the death of such survivor, the entire estate or principal fund remaining, not having been ]ry the will in any way disposed of, will go to the heirs general of the deceased, in fee.

The result of the views we have expressed, will lead us to the following advice, to wit: That from the net annual income of the estate in the hands of, or subject to, the trustee, he pay to Mrs. Mary Sherwood, the surviving daughter of the testator, during her life, the sum of three hundred and fifty dollars annually, for her sole and separate use; and in case of sickness, such further annual sum as may be necessary, to defray the cost and charges of such sickness.

And to Charles Hitchcock,the surviving son of the'testator by his first marriage, subject to the aforesaid payment to Mary Sherwood, the sum of five hundred dollars annually, during his life; and in case of the death either of the said Mary or Charles, then to the survivor of them, during his or her life, the sum of six hundred dollars annually, and such additional sum as the sickness of such survivor shall require.

And also, if said income shall be more than sufficient to make the aforesaid payments, then the sum or balance remaining, or the difference between what may be necessary to make such payments, and the sum of one thousand dollars in any year, such sum or difference to be paid to the heirs at law of the testator.

And if the net annual income of said estate has exceeded, or shall exceed, the sum of one thousand dollars in any year, such surplus income, beyond one thousand dollars, to be paid to the children .of Narcissa P. Hitchcock, the surviving widow of the testator, in equal portions, and to their heirs annually, so long as the said Mary Sherwood or Charles Hitchcock shall live. But, upon the death of both the said Mary Sherwood and Charles Hitchcock, said trust to cease and be determined, and the estate of the testator, then remaining in trust in the hands of the trustee, to be distributed in fee, to the heirs at law of the said Samuel J. Hitchcock.

In this opinion the other Judges concurred.

Decree accordingly.

       It is understood, that since the argument and decision of this case, Mrs, Sherwood has deceased, leaving a child or children.


source: Caselaw Access Project

author: Hinman, J. Waite, J.

license: Public Domain

text:
    Tuttle and wife vs. Fowler.
    A promissory note not negotiable, given to a feme sole, who afterward marries, may be assigned for a valuable consideration during the coverture, by the husband alone, so as to defeat the wife’s right of survivorship therein.
    Where the assignee of such note brought an action on the same, during the . coverture, in the joint names of the husband and wife, against the maker, who had knowledge of its assignment; and before judgment was obtained in such action, the husband procured a divorce from his wife; it was held, that the wife had no power to discharge such note after the divorce, although, at the time he made the assignment, the husband contemplated obtaining a divorce: held also, that, although the wife, after being divorced from her husband, gave the defendant a discharge from the payment of such note, the action so commenced might, under our statute relating to “ suits on choses in action assigned,” be prosecuted to final judgment, in the joint names of the husband and wife, after they had been divorced.
    This wras an action of assumpsit, brought in the names of Enos T. Tuttle and Elizabeth D., his wife, to recover the amount of a promissory note not negotiable, given to the said Elizabeth D., on the 1st day of January, 1848, while she was sole and unmarried.
    The defendant pleaded the general issue, with notice, that, under such issue, he would offer to prove, that, at the January term of the superior court in 1850, the said Elizabeth D. was lawfully divorced from the said Enos T., and that, since the granting of such divorce, and while sole and unmarried, by a full and sufficient discharge and release, under her hand and seal, she had released and discharged unto the defendant, for a valuable consideration, the note, and all other causes of action, for which the plaintiffs claimed to recover in this suit; and that, the plaintiff, Enos T. Tuttle, was prosecuting said suit, without the consent of said Elizabeth, and against her mind and will.
    The cause was tried at New Haven, October term, 1850.
    On the trial, it was admitted, that the note described in the declaration had been executed, by the defendant, to Elizabeth D. Tuttle, one of the plaintiffs, before her marriage with Enos T. Tuttle, the other plaintiff; that down to the time of the marriage in September, 1849, said note remained her absolute property; and that the plaintiffs, upon the petition of said Enos, were divorced by the superior court, at its January term, 1850.
    The defendant then introduced evidence tending to prove, and claimed that he had proved, that, after the plaintiffs had been divorced, the said Elizabeth, by an instrument sufficient for that purpose, under her hand and seal, released and discharged the defendant from the payment of the note in suit.
    The plaintiffs introduced evidence tending to prove, and claimed that they had proved, that before said divorce was granted, and before this suit was commenced, the said Enos had assigned said note, for a full and valuable consideration, to Zerah P. Tuttle, with due notice to the defendant, of said assignment;, that the defendant had taken said release, with full knowledge of said prior assignment, and that this suit was brought and prosecuted for the sole benefit of said assignee.
    The defendant then introduced evidence tending to prove, and claimed that he had proved, that, before said assignment was made, the said Enos had determined to obtain said divorce; and at the same time had resolved to reduce to his possession the note aforesaid ; that he had taken steps to accomplish both these purposes ; that payment had been demanded by him, of the person claimed by him to be the defendant’s agent, and such payment had been refused; that said Zerah P. Tuttle, knowing all the facts aforesaid, and knowing that the petition for divorce either had been brought, or was immediately to be brought, purchased and sued said note, in contemplation of the divorce.
    And the defendant claimed, and asked the court to charge the jury, that if they should find said release to have been executed by said Elizabeth to the defendant, as claimed by the defendant, and should also find said assignment, with due notice to the defendant, as claimed by the plaintiffs— then,
    1. If the assignment was in fact a sale and not a sham— yet if the assignee purchased the note, as claimed by the defendant, in contemplation of the divorce, and with the expectation of reducing the chose to his possession, after the termination of the coverture, and not before, he had no equitable title to relief against the legal effect of the release, and hence the plaintiffs can not recover.
    2. Even if the assignment was made in good faith, for a valuable consideration, and not in contemplation of the divorce, it could not defeat the wife’s survivorship.
    3. And the defendant further claimed, and requested the court to charge the jury, that, even if they should find no release to have been executed as aforesaid, by said Elizabeth, and even if the wife’s survivorship was. defeated by said assignment, still, upon the facts admitted by the plaintiffs, as aforesaid, a recovery could be had in this action, by these plaintiffs, the wife having now the sole and absolute legal title to the note.
    The court did not charge the jury in accordance with either of the defendant’s said claims, but charged them, that, if said assignment was not a sham, but was, in fact and in truth, a sale of said note, for a full and valuable consideration to said assignee, and if, before the execution of said release, the defendant had full knowledge that said assignment had been made, then the assignment would be a good defence against said release ;—that it was of no consequence, if the motives of the parties to said assignment, in the making of it, were as claimed by the defendant, provided it was in fact and in truth no sham, but a sale for a valuable consideration, as aforesaid; and that, even if said assignee did purchase the note in contemplation of the divorce, nevertheless said assignment would be a good defence against said release, and the plaintiffs must recover in this suit.
    As to the third objection aforesaid, the jury were instructed, that the action could be maintained, notwithstanding the divorce, by Zerah P. Tuttle,.the assignee, by virtue of the statute law, if they found he was a real bona fide purchaser, and had given notice to the defendant, before the said release, as he claimed to have proved.
    The jury having found a verdict for the plaintiffs, the defendant thereupon moved for a new trial, for a misdirection.

      Peck, Sf Harrison, in support of the motion,
    contended, 1. That the husband can defeat the wife’s ownership in her choses in action, which she had before- marriage, only by reducing the same to possession during the coverture. A divorce has the same effect upon his interests therein, as his death. An assignment by him, of her choses in action, even for a valuable consideration, does not defeat her survivor-ship therein.
    These doctrines, notwithstanding some old dicta to the contrary, are fully recognized in England. Clancy on Husband and Wife, 109, 111. 2 Bl. Com., 434. Newland on Con., 136. And in Massachusetts. 1 Met. R., 476. 19 Pick. R., 269. 6 Met. R., 545. They accord also with the spirit of our own decisions, and with the policy of our laws. Starr v. Pease et al., 8 Conn. R., 541. Wheeler v. Hotchkiss, 10 Conn. R., 229. Rev. Stat., 458 and 273, 274. Stat. of 1849, 16. Stat. of 1850, 27.
    2. The release of the wife is not, in this case, rendered inoperative, by the assignment.
    The claim of the defendant is addressed only to the equity side of the court; and as he brought the note, and sued it, as an intermeddler between Jmsband and wife, he can re-, ceive no help from a court of equity. 3 Bac. Abr., tit. Maintenance.
    3. One of the plaintiffs on the record has now no legal title or interest in the note, upon which the action is brought. This fact is a distinct and conclusive defence to the suit. Lee v. Jilson et al., 9 Conn. R., 94. Northam et al. v. Kellogg, 14 Conn. R., 569. 11 Mass. R., 313. 3 Met. R., 338. Chantler v. Lindsey, 16 Mee. & W. R., 82.

      C. Ives, contra,
    contended, 1. That the exercise' of any act of ownership by the husband, during coverture, over such chose in action as the wife had at the time of the marriage, which indicates a design on his part to reduce it to possession, takes away her right of survivorship therein. A bona fide sale by him, during coverture, for a valuable consideration, is such an act. 1 Sw. Dig., 26. Reeve’s Dom. Rel., 4, and authorities there cited. 2 Kent’s Com., (6th ed.,) 136, 137. Schuyler v. Hall, 5 Johns. Ch. R., 196. Lowry v. Houston, 3 Howard, Miss. R., 394. 1 Roper on Husband and Wife, 220, 221.
    2. This is an unconditional right of the husband, and if consummated by a sale, the law will not inquire into the motives of buyer or seller. The decisions in other jurisdictions, which are regarded as questioning this, relate to the wife’s prospective interests, and are in cases not analogous to this. But even in cases of that description, decisions may be found on both sides of the question. Reeve’s Dom. Rel., 5, and authorities there cited. 4 Rawle’s R., 468.
    3. This suit having been properly brought, and the note upon which the suit is founded, purchased, for a valuable consideration, and due notice thereof given, the statute law of this state will not allow any act of the seller to defeat it. Rev. Stat., 76. The release relied upon, in this case, was moreover a fraud upon the purchaser, and will be so regarded, by a court of law. Porter v. Seeley, 13 Conn. R., 564.
      Van Buskirk v. Hartford Fire Ins. Co., 14 Conn. R., 141. Blin v. Pearce, 20 Vt. R., 25. Learing v. Learing, 9 Paige Ch. R., 284.
   Hinman, J.

This was an -action in the names of husband and wife, plaintiffs, on a note given to the wife before marriage. It Was originally brought, and is still prosecuted, by the assignee of the husband. Since it was brought, the plaintiffs have been divorced; but the previous assignment was made in good faith, and for a valuable consideration. It also appears, that, since the divorce, the wife has discharged the note. • „

There is no doubt, that a divorce is tantamount, in its effect upon the wife’s property, to a dissolution of the mar riage, by the death of the husband. Starr v. Pease, 8 Conn. R. 541. 10 Conn. R., 225. Hence the question arises, whether a bona fide assignment of the note in suit, for a valuable consideration, made by the husband, during the marriage, is such a reduction of it to his possession, as will operate to defeat the wife’s right of survivorship.. The marriage did not vest the title to the note in the husband. “ In regard to her rights in action,” says Lord Coke, “ as debts by obligation, contract or otherwise, the husband shall not have them, unless he and his wife recover them—and this has always been the law.” What, then, will amount to a recovery of the wife’s chose in action ; or, in other words, what is such a reduction of it to the possession of the husband, as will deprive the wife of her right of survivorship ? This has never been judicially settled in this state. Judge Swift, however, says, in his Digest, 25, that a specific assignment of a particular chose in action, for a valuable consideration, will prevail against the wife’s right; but a general or voluntary assignment, if the assignor has not reduced it to his possession, will not bar her right, if she survive; and he cites Newland on Con., 136, in support of the doctrine. It is true, some modern English cases do not support this proposition; still, we think it not only reasonable in itself, but it may fairly be said to result from an established principle of long standing, and is also supported by the older authorities.

In 2 Atk., 208, it was held, that the husband might release the wife’s bond; and that it made no difference whether he had received the money on it, or not. And so in Chamberlain v. Hewson, Salk., 115, it was held, that he might release costs adjudged to her, in a prosecution she had carried on in the spiritual court; and in Gray v. Acton, Salk., 326, C. J. Holt said, that “Where a wife has any right or duty, which by possibility may accrue during coverture, the husband may release it.” Authorities to this effect are very numerous, and are collected in Clancy, 110, 1 Roper, 227, and 2 Kent’s Com., 134.

Now, while it is admitted, that the husband has power to release the wife’s debt, it is still insisted, that, he can not assign it, so as to defeat her right to it, if she survive him; and the reason given for this is, because he can convey no greater right to his assignee, than he had himself. But this reason is as applicable to a release, as to an assignment. We can see no more impropriety in allowing him to convey a greater right than he possesses, than there is in allowing him to discharge an obligation which does not belong to him: a reason which is so extensive in its operation ought not, we think, to be relied upon. But the older authorities support the proposition of Judge Swift; and Chancellor Kent says, “ It is understood to be the rule best sustained by authority.” 2 Kent’s Com., 137. In Bates v. Dandy, 2 Atk., 207, it was held, that the husband’s agreement to assign the wife’s mortgages, where a valuable consideration had been given, was valid, and could be enforced in equity, to the extent of the consideration, against the claim of the wife, as survivor, as well as against the representatives of

the husband ; and the case was put upon the ground of the husband’s power to make the assignment for his own benefit. See, also, Carteret v. Paschal, 3 P. Wms., 197. We are aware,'that the cases of Purdew v. Jackson, 1 Russ. R., 70, Honner v. Morton, 3 Russ. R., 65, and some others, go upon the ground, that a husband can convey no greater right than he.has himself; hut we can not yield to their authority, or to the reasoning on which they are founded; and while we do not adopt all the views of C. j. Gibson, in Siter and another v. Guardian of Jordan, 4 Rawle, 468, we still think, that as applicable to this case, the result of his reasoning is the more correct. We do not say, as seems to be the opinion of Gibson, C. J., that a mere intention of the husband, to reduce a chose in action to possession, is sufficient to bar the wife’s right. Such a principle, leaving the point to depend upon the mere volition of the husband, would be found to |?e too difficult for practical application. If this is true, anywhere, we think its application should be limited to such choses in action, as accrue to the wife, during coverture ; and, as with us, these, for the most part, vest absolutely in the husband, the rule would have very little application here. Besides, we think it is not the true rule, (see Scarpellini v. Atchinson, 53 E. C. L., 864,) and has, obviously, no application to the case under consideration. In regard to cases of this sort, we have no doubt, the husband must have made the debt available for his own use, in order to deprive the wife of her right of survivorship. But we.can not see, why a reduction to possession is not as effectually accomplished, by a bona fi.de sale and assignment, for value, as it would be by collecting the money of the debtor. In both instances, the husband has obtained all that the debt was capable of producing. On his receiving value for his assignment of the wife’s debt, he has, so far as he is concerned, reduced it to his possession, and his dying, or divorce, ought not to deprive the assignee of the fruits of his purchase. It seems to us, to Be a mere question of power in the husband, as the only agent, Having authority to control and dispose of the property, after the marriage; and this is not limited, or, in any sense, founded upon his interest in it. Before the marriage, the power to assign was unlimited in the wife. By the marriage, her power is taken away, and transferred to the husband; and, if his assignment is made in good faith, and for value, we see no reason, in annexing to it a condition, rendering, the transaction inoperative, on -a dissolution of the marriage.

But it is said, the release of the wife, since the divorce, operates to prevent the assignee from a further prosecution of the suit. Had it not been for our statute of 1822, this would be so. But that statute provides, that a discharge of a chose in action shall have no other effect, as against an assignee, than it would or ought to have in a court of equity. The release, in this case, was given after the defendant had full knowledge of the claim of the assignee, and so was received in.fraud of his rights. Such a discharge would be wholly unavailing in a court of equity, and is, therefore, unavailing here, by the express provision of this statute. Reivsed Statutes, 76. Scripture v. Newcomb, 16 Conn. R., 588.

Again, it is claimed, that the charge that the motives of the parties to the assignment were of no consequence, provided the sale and assignment was a bona fide transaction, and for a valuable consideration, was erroneous. We do not think so. The circumstance relied upon-by the defendant, in this part of the case, was, that the assignment was made in contemplation of the divorce. We do not think this circumstance deprived the husband of his power to assign, or the assignee of his right to purchase. The husband intended to reduce the note or the avails of it, to his possession. This he had the right to do; and whether he, at the time, contemplated a divorce or not, is of no importance.

The divorce, which has been granted since the commence ment of the suit, raises the question, whether the assignee can any longer prosecute it, in the joint names of the plaintiffs. To sue or to maintain a suit, the party plaintiff must have the legal interest in the subject matter. Lee v. Johnson, 9 C,, 94. And; had the divorce been granted at the time, no doubt the suit must have been brought in the name of the wife, as she alone would have had the legal interest in the note. But is it error to permit the assignee to take judgment in the names of the plaintiffs, since the divorce'* If the husband had died, his death might have been suggested on the record, and the action would have proceeded, as if brought in the name of the wife alone, after such death. Stat., 72, § 81. An equitable construction of the statute, authorizing this to be done in the case of the death of a co-plaintiff or defendant, would have justified the holder of this note, in taking the course of .suggesting the divorce, or causing it to be suggested on the record, and the action might then have proceeded in the name of the wife alone. But it is too late now to take that course. Northam v. Kellogg, 15 C., 569.

We think, however, the statute relating to the rights of assignees of choses in action, which we have before alluded to, p. 76, fairly applies to this part of the case also. That statute is very broad and comprehensive in its terms. It provides, that Whenever the defendant in any suit on a bond, note or other chose in action not negotiable, shall plead or give in evidence the discharge, admission or other act of the plaintiff, or any payment made to him, or any transactibn whatever between the plaintiff and defendant, it shall be lawful for the plaintiff to reply or prove, &c. And on the same being made to appear, such discharge, admission, payment or other transaction, shall be no otherwise available in such suit, than the same would or ought to be in a court of equity.” Now the act of procuring the divorce between these plaintiffs was “ the act of the plaintiff,” and so within the letter of this statute. Then what would be the effect of such an act, in a court of equity 1 . Obviously, the rights of an assignee would be protected against it. The death of a party is no ground of abatement in equity, where the interest survives to a surviving party; and where a husband dies, under circumstances which admit of demand by or against his representatives, the proceedings do not abate. Sto. Eq. PI. 290, § 357.

The statute to which we have referred, was passed to prevent the vexation, delay and injustice which were so liable to occur, in cases of this sort, in consequence of the unbending rules of law. And on a mere question of practice, where a party has established his right, we think it no strained construction, to hold the case of this assignee, to be within the mischief which the statute was intended to remedy. We do not, therefore, advise a new trial.

In this opinion Church, C. J., and Storrs, J., concurred. Ellsworth, J., having tried the cause in the court below, was disqualified.

Waite, J.

The present action is brought, to recover the amount of a promissory note, not negotiable, given by the defendant to Mrs. Tuttle, one of the plaintiffs, prior to her marriage with the other plaintiff. ’ They have since been divorced, and subsequently, she has released and discharged the defendant from the payment of the note,

Tire question now is, whether the present action can be sustained,, in the names of these two plaintiffs, upon that note, after the divorce and after the discharge given by the payee of the note. It is claimed, that it may be, for the benefit of Zerah P. Tuttle, to whom the husband alone, during the continuance of the coverture, assigned the note, for valuable consideration.

By a series of decisions, it has now become well settled, that the termination of the coverture, by a divorce, has the same effect upon the husband’s interest in his wife’s property, as his death. Starr v. Pease, 8 Conn. R., 541. Wheeler v. Hotchkiss, 10 Conn. R., 225. Legg v. Legg, 8 Mass. R., 101. Barber v. Root, 10 Mass. R., 260.

The note, at the time of the marriage, was a chose in action, belonging to the wife. It did not, upon the marriage, become the absolute property of the husband. He acquired but an inchoate right to it. It would become his, only upon condition, that he reduced it into possession, during the ex istence of the marriage relation. This he failed to do ; and, unless the rights of the parties are changed by the assign ment of the husband, the note survived to the wife, became absolutely and unconditionally her property, and entirely subject to her control. She alone can sustain a suit upon it, or, at her election, discharge the debt. The authorities upon this subject are numerous and decisive. Co. Litt., 351, b. Clancy on Husband and Wife, 4. Hayward v. Hayward, 20 Pick. 525.

What effect had the assignment, made by the husband alone, upon the rights of the parties; or in other words, what interest did the purchaser thereby take l In my judgment, he took precisely the same interest the husband then had, and no more. The husband had the right to collect the note, and apply the avails to his own use, provided he could do it, during the continuance of the coverture, and nothing more. This right, by the assignment, was conveyed to the assignee, and that was all. They both have failed to do this, and consequently, the rights of the wife remain unimpaired by the assignment.

Even a judgment obtained upon the note, would not operate as a reduction into possession, if the husband failed to collect the debt, during the continuance of the coverture. Under such circumstances, the judgment would survive to the wife.

It is, however, said, that the assignment was equivalent to a reduction into possession, and operated to transfer the note absolutely to the assignee. But I am entirely unable to understand, upon what principle such a result can be produced. The husband had but a conditional interest in the note—the right to collect it, provided he could do it, before the marriage relation was dissolved. How then could he, by a conveyance of the note, as his own property, and by his own act alone, convey an absolute and unconditional interest 1

Surely, this can not be said of any other conveyance made' by the husband, of his wife’s property. Were he to give an absolute deed of her land, it would convey nothing more than his interest. If there were no issue of the marriage, the interest of the purchaser would unquestionably terminate, upon the termination of the marriage relation. Law v. Hempstead, 10 Conn. R., 27. Rogers v. Moore, 11 Conn. R., 557.

There are indeed cases, where a person may convey a greater interest in property than he possesses, as where he acts under authority given him by the owner to sell. But I am not aware, that the claim of the assignee has ever been placed upon any authority, given by the wife, to convey.

A very extraordinary argument has sometimes been resorted to, in support of the claim. It has been said, that equity considers the assignment as amounting to an agreement, that the husband will reduce the property into possession ; that, what a party has agreed to do, shall be considered as done; and that, as the husband had the power of reducing the property into possession, his assignment shall be regarded as having that effect. 2 Sto. Eq., § 1412, note 3.

There may be some ingenuity in the argument, but, as I apprehend, very little common sense. It proceeds mainly upon false assumptions. In thq first place, the assignment does not contain an agreement, that the husband will reduce the property into possession ; it merely transfers the chose in action, with authority to use the husband’s name, at any time, for the collection of the debt, and the husband and wife’s, at any time during the continuance of the coverture.

Again, it is said, the husband has the power of reducing it into possession ; but this is not true, to the extent claimed. He has the power of doing it, provided it is accomplished during the coverture ; but no such power afterward, if his wife survive.

While the marriage relation continues, the husband is bound to support his wife, and pay her debts, and the law gives him power to collect her choses in action, and for that purpose he may unite her name with his, in suits for the collection of those debts, and upon the sale of them, he may transfer that power to the purchaser; but the moment the marriage relation is terminated, the wife surviving, his power over her is gone, and all the power by him delegated to others.

In order to sustain the doctrine contended for, on the part of the assignee, English judges have been obliged to resort to some nice distinctions, in relation to assignments, made by husbands, of their wives’ choses in action.

Thus it has been holden, that the rule does not extend to assignees in bankruptcy, or insolvency of the husband, or to assignees for the payment of the debts of the husband generally. Their power over such property, continues only during the coverture, and when that is terminated, the wife takes, if she survive. 2 Sto..Eq., § 1411.

Nor does it apply to the assignment of a reversionary chose in action, or other reversionary equitable interest. For it is said, that the assignment does not, and from the very nature of the thing, can not, amount to a reduction into possession, of such reversionary interests.

And it has been holden, that even a purchaser, for a valuable consideration,' of the wife’s chose in action, may, in equity, be compelled to make, a settlement out of the same, for her benefit.

Indeed, I think it may be laid down as a general rule, that the wife, surviving the coverture, will take all choses in action, belonging to her before the marriage, and not reduced into possession, whether any assignment of them has, or has not, been made by her husband. The only exception to that general rule, ever recognized, so far as my knowledge extends, is that in favor of a bona fide purchaser, for valuable consideration.

And, in order to support such an exception, a most extraordinary power must be considered as vested in the husband, that of compelling his wife to act as trustee for another, after the marriage relation is ended, and after every other power over her is forever gone.

Now, in my judgment, it is better, far better, to have one uniform rule, alike applicable to all assignments made by the husband, of his wife’s choses in action, and thus avoid all nice and artificial distinctions, when no necessity for them exists.

I am aware, that principle is sometimes borne down by precedents, and did I consider the rule, settled in England, that the title of the purchaser of the wife’s chose in action, is superior to hers by survivorship, I should feel it my duty to yield to the rule, however unsatisfact.ory might be the reasons urged in support of it.

But, although different judges may have- entertained different opinions upon the subject, I do not consider the rule to be there established, and I am not aware, that the question has ever previously been made, before our own courts. We therefore are at liberty to settle the question upon principle.

The best considered case which I have been able to find upon this subject, is that of Purdew v. Jackson, 1 Russ., 26.

Sir Thomas Plumer, in delivering his opinion in that case, said, “The assignee for valuable consideration, with notice, must take the right, as the husband had it. He buys the chance of the husband’s outliving the wife. In whose name must the action be brought ! what obligation is the wife under, to recover the debt for the assignee ? or what right would he have to use her name for such purpose ! The husband might contract, that the assignee should be at liberty'to sue in his name, at any time, or in the name of him and his wife, during the continuance of the coverture, but could he give authority to a stranger, to sue in her name, after his own decease! The debt is a chose in action,—the assignment can not alter its nature,—and, continuing to be a chose in action, it becomes the absolute property of the surviving wife.”

This opinion of a very learned judge is acknowledged by eminent jurists, to be a very able one. His reasoning, to my mind, has never been satisfactorily answered. The rule recognized is a plain, simple one, applicable alike to all assignments of the wife’s choses in action, and dispensing with all nice and unnecessary distinctions in relation to such assignments. It is in harmony with a rule, repeatedly recognized by our courts, that the conveyance of a person attempting to convey a greater estate than he has, shall operate only to convey all his interest, without effecting the rights of others, not parties to the conveyance.

The rule, in my judgment, ought to govern in the present case, and I therefore can not concur in the opinion expressed by a majority of this court.

New trial not to be granted.