Terry v. Allen

James Terry, senior, died April 19th, 1871, leaving a will, the third and fourth clauses of which read as follows:

"Third. I give, devise and bequeath one third of all the remainder of my personal estate to my friend, R. D. H. Allen and his successors, in trust, to hold and manage the same, and to pay over to my said wife, Valeria Terry, all the interest, rents, dividends and profits thereof, during her natural life, to her sole and separate use and upon her sole receipt, and at her death to cause the same to be divided as given in the next section of this will.

"Fourth. I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal, of every name and nature, in equal proportions to all my children living at my death, and to the issue of such as may then be deceased, if any, said issue taking by representation, and any child hereafter born to me to share in this devise, to them and their heirs; provided, however, that if any of my children shall die after my decease and before arriving at the age of twenty-one years without lawful issue, the share hereby given to said child or children shall be divided equally among my surviving children and their issue in the same manner as if said child or children had deceased during my life."

The will was duly probated in the court of probate for the district of Plymouth, and the testator's estate was duly settled and distributed in that court. There was distributed to the defendant Allen, as trustee under the third section of the will, more than sixty thousand dollars in value of personal property, consisting of money, stocks, bonds, notes and securities of various kinds. Mr. Allen accepted the trust and qualified, giving bonds with surety in the amount of seventy-five thousand dollars for the faithful performance of his duties as trustee, and has continued to the present time to act as trustee, and now holds the trust fund. A surety on his bond has since the filing of the same become insolvent; otherwise, so far as appears, the bond is good and sufficient.

On the 3d of September, 1889, the plaintiff brought his complaint against Rollin D. H. Allen, Edward Clinton Terry, and Cornelia Hunter, therein alleging that he, the plaintiff, and said Edward and Cornelia, are the children of the testator James Terry and the only legatees under the fourth clause of his will. Said Edward and Cornelia were made defendants because unwilling to be plaintiffs, and subsequently the said Valeria Terry, widow of the testator, was made a party defendant.

The complaint in substance alleges that since said trust funds came into the possession and control of the trustee he has invested large amounts of the trust funds in unauthorized securities, whereby a serious loss has already occurred to the trust fund and further losses are imminent; that said trustee has unlawfully changed investments from good and legal investments to those not warranted by law, and invested in stocks, bonds, notes and other securities not permitted by law, whereby large losses have occurred to thecorpus of the fund; that many of said unlawful investments were made in securities bearing a large rate of interest or income, and that the corpus of the trust estate has been wasted and injured, to give the life tenant a large income; that many of said investments were made for the purpose of increasing the income of the life tenant at the expense of the remainder-men; that considerable sums have been paid by the trustee to the widow as income, interest or profits of the trust fund which properly belong to and are a part of the trust fund itself; that such unlawful and unauthorized investments were made by the trustee at the request and desire and with the concurrence of the life tenant and for the purpose of increasing her income, to the detriment of the plaintiff and the other legatees; and that the trustee neglects and refuses to manage the trust fund in conformity to law and equity, but persists in so managing it as to cause large losses to the trust fund itself and to give the life tenant a much larger amount of income, profit and interest from the trust fund than she is properly entitled to. Thereupon the plaintiff demands judgment — 1st. That the trustee shall restore the trust fund to its original integrity and replace said wasted and lost trust fund in proper and lawful investments and securities. — 2d. That the trustee shall not hereafter purchase or invest in any way any part of the trust fund except in securities in which trustees are permitted by law to invest. — 3d. That the trustee be directed to withhold all earnings, interest, increment, dividends and profits arising from the trust fund and properly payable to said Valeria Terry in the future, until he has retained a sufficient amount in his hands to replace the amounts so unlawfully paid by him to her, with interest thereon.

The plaintiff subsequently filed specifications of the unauthorized and illegal investments claimed by him to have been made by the defendant trustee, so far as he was then informed of the same, and as appeared by the books of account filed by the defendant in court.

It will be unnecessary, in view of the conclusion to which we have come, to consider several questions which were raised at the trial below and ably argued before us. The defendant in the first instance filed a plea to the jurisdiction on the ground that during all the time he had been trustee he has annually rendered his trustee account to the probate court of the district of Plymouth where the testator's estate was settled and within which he, the trustee, resides; that upon the rendition of said account, copies of which are appended to the plea, said court received and recorded the same respectively, and took such further action thereon as appears upon said copies; that by reason of the facts in said plea stated the probate court at the time the action was brought had acquired and then fully had jurisdiction of the subject matter of the complaint, with full jurisdictional power to adjust and allow the accounts of the defendant as such trustee with said estate and all parties interested therein, and to secure the due execution of all trusts and duties of the defendant in respect thereto, and that therefore the Superior Court is without jurisdiction to render the judgment demanded.

The plaintiff answered the defendant's plea to the jurisdiction. The defendant demurred to one paragraph of the answer, which demurrer was overruled, and the defendant's plea to the jurisdiction was overruled and the defendant ordered to answer over.

One paragraph of the answer filed in compliance with the last mentioned order is as follows: — "This defendant further says that said estate is now in process of settlement in the court of probate for the district of Plymouth; that he has, from time to time, submitted to said court his accounts as required by law, which accounts have been duly accepted and approved by said court; that he is under bonds in said court for the proper administration of said trust estate, which bonds are ample to protect the persons entitled to the remainder of said funds on the termination of said trust against any loss; and that, while some of the said investments may to-day have a market value less than the price originally paid therefor, he believes they will all ultimately prove good investments."

The finding of facts states the claims made by the defendant which were overruled. Among them is the following: "That as said trustee had given a bond of sufficient amount and security to the court of probate for the faithful performance of his duties as trustee, he could not now be held to respond to a court of equity for his said conduct as trustee."

The appeal is grounded, among other reasons, upon the overruling of the plea to the jurisdiction, the taking jurisdiction of the matters set out in the complaint, specification and answer, and in holding the interest of the plaintiff to be sufficient to enable him to maintain this action.

It will appear from the foregoing that, as already suggested, several interesting questions were presented by the pleadings. But it was claimed by the defendant that, upon the facts, the plaintiff had no such interest as would entitle him to maintain his action. As this claim strikes at the root of the matter it should be at once considered.

The interest created by the will in favor of the plaintiff is a remainder in personal property, dependent upon an estate for life. It was held inLangworthy v. Chadwick, 13 Conn., 42, that a remainder in personal chattels dependent on an estate for life may be created by grant or devise; and that the interest so created will be protected in chancery. The court says: "It was formerly held that the person entitled in remainder might call for security, from the legatee for life, that the property should be forthcoming at his decease, (citing several cases.) But this practice has been overruled; and chiefly on the ground that to decree such security would be improperly to interfere with the will of the testator. And the course now is for the remainder-man to call for the exhibition of an inventory, to be signed by the legatee for life and deposited in court. When, however, it can be shown that there is danger that the property will be either wasted, secreted or removed, a court of chancery will interfere to protect the interest in remainder by compelling the tenant for life to give security. And such we suppose to be the well-settled practice in Westminster Hall. * * * Indeed, the same regard to the intention of the testator which forbids a court of chancery to decree that security shall be given where there is no danger, would seem to require such interference when that intention is likely to be defeated by the conduct of the devisee for life. This highly reasonable principle has been recognized in this country and was fully adopted by the court in Hudson v.Wadsworth, 8 Conn., 348. See also 2 Swift's Dig., 154; 2 Kent's Comm., 287; 2 Paige, 123."

The protection, it will be observed, which the court of chancery affords, is to require adequate security. And this is the protection which was subsequently provided by statute, through courts of probate, for persons interested in remainder, in cases where no trustee is named for such estate during the continuance of the life estate. Pub. Acts, 1865, p. 74; Gen. Statutes, § 559. In such cases this court has assumed that the protection so afforded was adequate and appropriate. Clarke v. Terry,34 Conn., 176; Sanford v. Gilman,44 Conn., 461; Security Company v. Hardenburgh,53 Conn., 169.

In this case a trustee for the estate during the continuance of the life estate was provided by the testator. He accepted the trust and qualified as trustee, giving bonds in accordance with law. It is not claimed that the bond is not good and sufficient. He is required by the will not only to hold and manage the trust estate and pay over to the widow all the interest, rents, dividends and profits thereof during her natural life, but at her death to cause the same to be divided as in the will provided, and his bond, of course, is conditioned upon his discharge of all his duties as trustee. The interest in remainder is protected in the same way it would have been had the property gone into the hands of the legatee for life where no trustee is named or appointed. The remainder-men are protected and are entitled to be always protected by a good and sufficient bond against loss on account of any mismanagement of the estate. As remainder-men they are entitled to no more. They have no interest in the income. They have no present claim upon the trust fund. Should the life estate terminate to-day, a good and sufficient bond stands between them and possible loss on account of any illegal management or investment of the trust funds. Unless they are negligent in failing to see to it that a good and sufficient bond is always provided, they will have like protection whenever the life estate terminates.

Upon principle we do not see our way clear in such a case to yield to the claim of the plaintiff that he may now compel the trustee to defend his investments and his management of the fund, and call upon the courts to prescribe in advance a rule by which such investments shall be governed. The plaintiff cites upon his brief from Lewin on Trusts, instances where he states that cestuis que trust may interfere with the management of their trustee. The reasons why cestuis que trust interested in the investment and management of the fund, as the source of their income, and not in its preservation only, to be handed over to them unimpaired in amount, should have that power, are not conclusive of the case in hand. In this case the plaintiff can in no proper sense be called a cestui quetrust. The property belongs to the remainder-men, divested of the trust, immediately upon the death of the widow. The provision in the will that the trustee shall cause the same to be divided in no practical sense alters his relations to the defendant.

We are constrained to hold, therefore, in this case, that the plaintiff has full and sufficient protection and is not en titled to the relief which he demands.

There is error in the judgment appealed from.