Brown v. Hart

• Decision Date: 01 June 1917
• Citation: 100 A. 1065,91 Conn. 667
• Court: Connecticut Supreme Court
• Parties: BROWN v. HART.

100 A. 1065

91 Conn. 667

BROWN

v. HART.

Supreme Court of Errors of Connecticut.

June 1, 1917.

Appeal from Court of Common Pleas, New London County; Charles B. Waller, Judge.

Summary process proceeding by John E. Hart, trustee under will of Elijah A. Morgan, against Wilfred E. Brown. Judgment for plaintiff in justice court, and defendant brought writ of error to court of common pleas, which affirmed judgment and dismissed writ of error, and defendant appeals. No error.

The original summary process proceeding was brought by John E. Hart, as trustee under the will of Elijah A. Morgan, against the plaintiff in error, hereinafter called the defendant.

Hart was trustee of the residue of the testator's estate, including the real estate in question, to hold and keep the same properly cared for and invested, with power of sale, "until my son, Erle A. Morgan, shall have reached the age of twenty-five years, at which time said residuary portion, with its accumulations, shall be transferred and conveyed by proper instruments to my said son, Erle A. Morgan, his heirs and assigns forever discharged of trust."

The son became 25 years old in 1914. The defendant had occupied the premises since 1907 under a written lease for one year which was afterward continued by parol, and at the time the summary process proceedings were instituted in 1915 the testator's son was over 25 years old.

The defendant pleaded in abatement on the ground that the plaintiff, Hart, trustee, had no right to maintain the action because the trust was terminated when Erle A. Morgan became 25 years of age, and, on the plea being overruled, answered by alleging, among other things, that from the time Erle A. Morgan became 25 years of age the defendant had been the tenant of Erle under an agreement that the defendant should pay to him the rent due, and to become due, from the time when he arrived at the age of 25 years, as soon as the property in question was turned over to Erle by the trustee. The answer also alleged that the defendant had paid all the rent due to the Morgan estate until August, 1913, when the trustee refused to accept any more rent, and that since that time the defendant has at all times been willing and ready to pay any rent which was due, and several times offered to pay the same, but the trustee refused to receive it. The writ of error and bill of exceptions presented to the court of common pleas included many alleged errors of the trial justice, which, in so far as they are pursued on this appeal, are sufficiently noticed in the opinion.

Benjamin H. Hewitt, of New London, for appellant. Abel P. Tanner, of New London, and Albert Denison, of Mystic, for appellee.

BEACH, J. (after stating the facts as above). [1] One of the claims relied upon by the defendant is that after Erle Morgan became 25 years of age the trustee no longer had a right to bring summary process, because the trust had terminated, or become purely passive, and the trustee was no longer the owner or lessor of the premises. The trustee had not conveyed the premises to the cestui que trust, and so long as the defendant remained in possession, refusing to quit because claiming to be in possession under a contract of lease from the cestui que trust, which the latter denied having made, it was the right, if not the duty, of the trustee to attempt to free the premises from the incumbrance thus created before conveying them to the cestui que trust. There was no error in overruling the plea in abatement and in holding that the trustee had a right to maintain the action.

Defendant also claimed and testified that in January, 1915, he made an express contract with Erle Morgan in the nature of a lease of the premises on the same terms as those on which he had been occupying them. Morgan denied this, and his testimony that he instructed the trustee to bring this action of summary process and that he wanted the property transferred to him unincumbered was admissible on this issue.

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