Allen Appeal from Probate , 69 Conn. 702 ( 1897 )

Baldwin, J.

In 1872, when the will, upon the construction of which this case turns, was executed, it was part of our statute law, as it still is, that every testamentary trustee should, unless otherwise provided in the will, be required by the Court of Probate having jurisdiction over the estate of the testator, to give a sufficient bond, with surety ; and also that, if the will did not provide for the contingency of his death, the same court should, upon that event, appoint some suitable person as his successor. General Statutes, Rev. of 1866, p. 407, §§ 26, 27; General Statutes, Rev. of 1888, §§ 490, 491.

In the will of William S. Pierson certain provisions on these subjects were made. The five executors and trustees, whom he named, were to hold in joint tenancy; but whenever their number should be reduced to two, he directed that the judge of probate of the district to which he belonged should appoint a third, and in so doing should “ regard the wishes of the existing trustees, or the persons interested in the estate, as far as he believes he can with safety to the estate, but no further.” Then follows a clause stating that while he did not desire the judge of probate to be governed in fixing the amount of bonds for the executors and trustees by the law with regard to the value of the personal property belonging to the trust, he wished such bonds to be given as, together with their own personal responsibility, should, as far as practicable, secure the estate from loss.

This latter provision assumes that the judge of probate lias certain duties under the law as to requiring bonds from executors and trustees, which may be affected by testamentary directions. Such is the case in respect to Courts of Probate, and to judges of probate while acting officially as such a court; and it is obvious that by the term “ J udge of Probate ” the testator here meant to describe the Court of Probate for the district of Windsor.' The rule of construction that words occurring more than once in a will shall be presumed to be used always in the same sense, unless a contrary intention appear by the context or they be applied to a different subject, applies with double force where the word in question is found in two sentences in immediate succession. It was, therefore, the Court of Probate which the testator must be deemed to have had iu mind, in directing as to the exercise of the power of appointment; although his reference to the “Judge of Probate of this district,” had it stood alone, might have been taken to apply to that individual who, for the time being, should be occupying that office. Bishop v. Bishop, 54 Conn. 232.

This clause of the will seeks to impose a certain limitation on the action of the court in making an appointment. The imperative phrase “shall regard the wishes,” if taken in its natural import, is equivalent to “ shall be governed by the wishes.” We find it unnecessary to determine whether, assuming this to be its proper construction, the manner in which the testator sought to direct and control the action of the Court of Probate is such as, under General Statutes, § 491, the law permits. If the provision be given full effect, it would amount to no more than the grant of a power to certain individuals, by the expression of their wishes, to control within certain limits the judgment of the court in the choice of a trustee. It would, as to them, concern a matter of mere private confidence; and every power of that description, conferred upon several persons, must be exercised by their unanimous concurrence, or not at all. The testator undertook to create an alternative power. If the two surviving trustees had agreed on any nomination, and had all the beneficiaries under the trust then in being (including, in the case of minors, their guardians), agreed on another, the Court of Probate would have been left free to choose between them. As it was, the trustees expressed no wish, and the beneficiaries agreed on none ; each of those who appeared, objecting to the nominations made by any of the others. Under these circumstances, the Court of Probate properly proceeded to fill the vacancy, without regard to wishes expressed by any number of the cestuis que trustent, less than the whole; even if the provision made by the testator be regarded as supported by the statute in its full extent.

On the other hand, if it can be regarded as an unauthorized attempt to confer jurisdiction upon a court of justice and dictate its course of proceeding, then it was so far forth void, and the decree of the Court of Probate was a valid exercise of its ordinary statutory powers. This would be true, notwithstanding the general rule of equity jurisprudence that in appointing a trustee the court should always pay regard to the wishes of the person who may have constituted the trust, or of those whom he has empowered to speak in his behalf; for in this case no such wishes were ever expressed.

The evidence received to show the reasons which led the judge of probate to pass the decree in question was, in any view of the case, totally incompetent and inadmissible. His letters and declarations out of court were mere hearsay. Judicial decrees speak for themselves, and whenever, in the rare instances when it may be permissible to inquire into the process of reasoning leading to a judgment, no finding on that subject has been made, the facts must be proved, as in other cases, by direct testimony, and the judge put upon the stand.

There is error, and the judgment of the Superior Court is reversed.

In this opinion the other judges concurred.