Averill v. Lewis , 106 Conn. 582 ( 1927 )

I am unable to agree with my brethren in their holding that these appellants have no pecuniary interest in the issue involved in the appeals, nor in their view that the question of whether the right parties have brought this appeal is raised in the motions to erase, nor in several of the technical grounds which the opinion of the court supports as a basis for denying these appellants the relief they seek.

Each of the testatrices, Elizabeth J. Fitch and Mary L. Fitch, sisters, left a will devising and bequeathing substantially her entire estate to her sister, after paying debts and other proper charges, and all dispositions in case of survival were identical with the exception of Article Eleventh, which bequeathed a like sum, but to different charities. In Article Twelfth, each will devised and bequeathed, subject to the contingency that her sister should not be living at the time of the decease of the testatrix, the residue of her estate in trust to five trustees: A. To hold, invest and reinvest, and after deducting the expenses of the trust, to expend so much of the income as might be necessary and proper in the establishment, support and maintenance, upon the homestead occupied by the testatrices, "of a free Rest, for white, Protestant, female teachers, who may be dependent upon their own labor for support, and residing in the County of Fairfield and State of Connecticut; . . . under such . . . rules and regulations as they may from time to time prescribe." "B. Subject to such reasonable rules and regulations, any white, Protestant, female teacher who may be dependent upon her own labor for support, and who shall reside in said County, shall be entitled to apply to the said trustees for free entertainment and maintenance at such Rest as to the trustees shall seem most worthy and deserving, for such periods of time as said trustees shall think wise, and the income of the said trust fund shall make possible. I desire that such Rest shall be made and maintained attractive and home like, and that said guests shall be sheltered and entertained in said Rest not lavishly, but hospitably, and without any expense to them for such entertainment and maintenance. I would prefer that a few should be made very comfortable rather than many uncomfortable." The final accounts upon each estate were accepted by the Court of Probate and appeals taken by the one hundred and ten appellants from such decrees. Each appeal recites that the subscribers — appellants — are "white Protestant Female Teachers, dependent upon their own labor for support, and reside in the County of Fairfield and State of Connecticut, and as such are beneficiaries interested in and concerned with the conduct of the administration of said estate, and the distribution and application of the assets thereof to the purposes set forth in the will of the testatrix." It then recites the order of the Court of Probate and the allowance of the final account and the order that it be recorded and lodged on file and that "the subscribers are aggrieved" by the order and decree, wherefore they take their appeal. I agree with my brethren that the so-called pleas in abatement and motions to erase did not allege any new facts and required no answer. I am further of the opinion that these were not pleas in abatement, but simply motions to erase. I also agree with my brethren that the only issue adjudicated by the trial court was in holding that the appellants were not pecuniarily interested in these estates and were not aggrieved, "and so had no right of appeal." It is from this adjudication the appellants appeal.

My brethren hold that the will of Elizabeth J. Fitch never became operative and therefore the appellants have no interest in the final accounting. Elizabeth J. Fitch predeceased her sister Mary and under her will the residue of her estate, which was substantially her entire estate, less expenses of administration, became the sole property of Mary, so that any diminution of the estate of Elizabeth diminished the estate of Mary, and diminished the amount of the residue available for the charitable trust and for the class of beneficiaries under it, of which class the appellants are members. Whether members of this class are necessary parties or not, they are certainly proper parties if they can be said to have a pecuniary interest. The fund available for the class may be seriously affected by the accounting on this estate and the interest of this class under the public charitable trust ought to be protected. The appellants claim to be aggrieved by the approval of the final account in each estate, the orders upon which were passed on the same day. If the position of the majority opinion be correct as to the order in the estate of Elizabeth J. Fitch, it must be equally sound as to the order in the estate of Mary L. Fitch, and in neither estate would any of the members of this class have an interest or a right to be heard no matter how grievous the wrong done by those in authority in wasting or destroying the trust fund given for the benefit of this class. A result, perhaps destroying a trust fund and leaving the beneficiaries of the trust remediless, ought to be supported by something other than a technical position. Later in the opinion it is urged that the Attorney General alone has the power to protect and enforce the trust and hence to maintain the appeal. I do not discuss this point, since it was not made one of the grounds of the motion to erase, and seems at variance with what the opinion in its earlier part holds to be the only ground adjudicated and appealed from — whether the appellants had any pecuniary interest in this estate and for that reason were aggrieved. The appeals and the motions to erase do not indicate it, but at this stage of the case it cannot be held as matter of law that the appellants may not subsequently show that through an unjustified refusal of the Attorney General to appeal, or through failure to notify him of the proceedings, he failed to take appeals, and in consequence the rights of the appellants, if they have a pecuniary interest in this fund and are denied the right of appeal, would be seriously prejudiced by such refusal or failure. If, then, they cannot themselves maintain an appeal from the order so prejudicing them, they will have been deprived of their day in court. The majority opinion also suggests that the administratrix of the estate of Elizabeth J. Fitch was the proper party to appeal. The same considerations which we point out as possible reasons for the failure of the Attorney General to appeal, thus making it indispensable that the appellants be permitted to appeal, might have deterred the administratrix from taking an appeal, and so made it indispensable that the appellants be accorded this right. Punishing the Attorney General, or the administratrix, for a breach of duty, will not bring back the wasted or lost trust fund. The question of who is the proper party to take the appeal bears no relation to the question at issue upon the motions to erase — whether the appellants have a pecuniary interest in this trust fund.

My brethren also maintain that the appeal on the estate of Elizabeth J. Fitch is defective for the reason that it does not appear that the interest of the appellants is stated other than as a legal conclusion, that is, that they are beneficiaries and interested in the estate and aggrieved by the order. The same reason would be equally applicable to the appeal on the estate of Mary L. Fitch. It is true that facts must be stated which show that the appellants are beneficiaries and are aggrieved. In the record, in the argument, and in the opinion of the court, the wills of these decedents are practically treated as a part of these motions. It appears from the wills that the class described in each will is given the residue of the estate; other allegations show that the appellants are members of this class, and hence may be beneficiaries of this trust fund. The extent of the interest, and how it is affected by the order appealed from, need not appear. Saunders v.Denison, 20 Conn. 521. Similarly, the allegations that the appellants are beneficiaries and interested is not a legal conclusion, since the wills and the other allegations of the motions show this to be the fact.

My brethren refer to the reasons of appeal which the appellants filed after their motions. I do not understand that these are before us in passing upon the motions to erase the appeals, nor that the motions can be aided by the allegations of the reasons of appeal.

We come next to the main ground of the appeal before us, that the motions do not disclose any pecuniary interest in these appellants, and without such interest the motions are fatally defective and appellants have no basis for their appeals. Under our law the trusts under these wills were valid gifts to a charitable use, for a definite class, and to trustees specifically authorized to select from that class the beneficiaries of the testatrix's bounty at their discretion.Camp v. Crocker's Admr., 54 Conn. 21, 24,5 A. 558; Tappan's Appeal, 52 Conn. 412; Eliot's Appeal,74 Conn. 586, 598, 51 A. 558; Beardsley v. Selectmenof Bridgeport, 53 Conn. 489, 494, 3 A. 557. The allegations of the appeal bring these appellants within this class from which the beneficiaries are to be selected. All those who are members of a class from which the beneficiaries of a charitable trust are selected, have a potential interest in the preservation of the fund. Each one of the class may at some time be one of its beneficiaries. The appeal is dependent upon the allegation that the appellants are aggrieved by the decree appealed from. "Aggrieved," as used in our statute as to appeals from probate, applies only to those who can show some pecuniary interest which the decree appealed from will in some way injuriously affect. Woodbury's Appeal, 70 Conn. 455, 456,39 A. 791; Beard's Appeal, 64 Conn. 526, 533,30 A. 775. Aggrieved, as used in this connection, includes those whose interest is a potential pecuniary interest. The members of this class are the only potential beneficiaries of this charitable fund. It exists for them. No one else has even a remote interest in it as long as the class may exist. To hold that the appellants, members of this class, have no pecuniary interest, would deny the interest of every other member of the class, at least until he had been selected by the trustees as a beneficiary. The selected one may be one of a very numerous class. To hold that he has an interest and all others of the class not, is to make the determining test the power of selection rather than the testamentary disposition for the benefit of this class made by the testatrix.

A creditor of an estate represented insolvent has a prima facie interest in its settlement, and this interest gives him a right of appeal from the doings of commissioners, either in rejecting his own claim, or in allowing that of another. Saunders v. Denison, 20 Conn. 521. The rule obtains for the reason that it cannot be presumed that the executor or administrator would protect the interest of the creditor, although, undoubtedly, the representative of the estate would have a like right of appeal. In Dailey v. New Haven,60 Conn. 314, 22 A. 945, a will gave one fifth of a large sum given in trust to sundry public charities, to the city of New Haven to be held in trust and the income applied for the aid of "deserving indigent persons, not paupers." This was thus a public charitable trust, as is the trust before us. The State's Attorney and a taxpayer brought a suit to restrain the city from refusing to accept the bequest. We held the city had no power to accept the trust, but that the gift to a charitable use being valid, the court of equity would appoint a trustee to administer the trust. In our opinion we said: "We think also that in this case the attorney for the State should apply to the probate court for the appointment of a trustee or trustees. In case of his failure so to do, such application may be made by any individual of the specified class of beneficiaries." No one of this class of beneficiaries could act in enforcement of the charitable trust unless he had a pecuniary interest in the trust fund which the court would recognize. In this case the interest of the plaintiff was a potential pecuniary interest, as it is in the instant case. So that our holding meant that we conceived that any of the "deserving indigent persons" for whom the trust had been created had a sufficient pecuniary interest to entitle him to act, provided the attorney for the State should fail to act. Whether the action is taken by the Attorney General, General Statutes, § 170, or by the State's Attorney, or by a member of the class of potential beneficiaries, does not create the interest in the trust fund, that was created by the will of the testatrix. The majority opinion holds that the proceeding in the Dailey case had nothing to do with the defense or enforcement of the right of a beneficiary, but only with the naming of a trustee, and hence my brethren find no analogy in the action taken by Dailey and in that taken by the testatrix in these cases. Neither had a right to appear unless he had a pecuniary interest. This, in effect, is what my brethren in other portions of the opinion seem to maintain. We had supposed it to be our law that no private person could appear in the enforcement of a charitable trust who did not have a pecuniary interest, direct or potential.

The motions to erase admit the truth of all allegations of fact made in the motions for an appeal. In their motions these appellants allege that they are within the class designated in the will, and, further, "as such are beneficiaries interested in and concerned with the conduct of the administration of said estate, and the distribution and application of the assets thereof to the purposes set forth in the will of the testatrix." There is nothing in the motions for an appeal, or in the terms of the will, which refute these allegations. Conceding that the appellants are within this class, the terms of the will, fairly construed, in my opinion, give the members of this class a potential pecuniary interest in this fund and in the administration and distribution of its assets.

The one hundred and ten members of this class seriously question the correctness of the final accounting on each estate. They seek to preserve a public trust of a novel and most beneficent character from waste and depletion. They ought to be given an opportunity to be heard, instead of being turned out of court by the drastic application of technical rules. It may be that they can show that the proper public authority was never given notice of the applications for acceptance of the final accounts on these estates, or, if given such notice, that due to his unjustified refusal no appeal was taken by him. If they can show either of these conditions, they ought to have the right to be heard. The decision of the motion to erase, unlike that upon a demurrer, is a final judgment. Unless the want of jurisdiction appears upon the face of the record, the motion to erase should not be granted, and in doubtful cases denied. Norton v. Shore Line ElectricRy. Co., 84 Conn. 24, 32, 33, 78 A. 587.

In this opinion HINMAN, J., concurred.