Citizens & Manufacturers Nat. Bank v. Guilbert

• Decision Date: 10 July 1936
• Citation: 186 A. 564,121 Conn. 520
• Parties: CITIZENS & MANUFACTURERS NAT. BANK v. GUILBERT et al.
• Court: Connecticut Supreme Court

186 A. 564

121 Conn. 520

CITIZENS & MANUFACTURERS NAT. BANK v. GUILBERT et al.

Supreme Court of Errors of Connecticut.

July 10, 1936

Appeal from Superior Court, New Haven County; Newell Jennings Judge.

Action by the Citizens & Manufacturers National Bank, Trustee, for construction of the will of George Panneton, against Edmond E. Guilbert and another. The case was tried to the court. From a judgment construing the will, defendants appeal.

No error.

William B. Fitzgerald, of Waterbury, for appellants.

Patrick Healey, of Waterbury, for appellee.

Edward J. Daly, Atty. Gen., and Charles J. McLaughlin, Deputy Atty. Gen., concurred in brief of appellee, in behalf of the State.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN, JJ.

HINMAN, Judge.

By his will, dated March 11, 1915, George Panneton, of Waterbury, made separate specific bequests to or for his two brothers, sister, and four nephews, being all of his heirs at law, and two other persons, also bequests, ranging in amount from $200 to $500, to eleven charitable and religious organizations and institutions, including one of $200 to " the Old People's Home, in care of the Little Sisters of the Poor, of New Haven." He also bequeathed the income of $2,000 for ten years to the Society of St. Vincent De Paul of Waterbury, the principal then to become part of his residuary estate. The will then provided, in article fifteenth: " All of the rest, residue and remainder of my estate, real and personal, I give, devise and bequeath to the said Little Sisters of the Poor, and its successors, a charitable organization of the city of New Haven, in trust, to expend the income of said rest residue and remainder in establishing and providing a Home in said Waterbury, for the aged worthy poor of said Waterbury, in memory of my deceased wife, Eunice A. Panneton."

Panneton died November 24, 1920, the will was admitted to probate, the estate was administered by the executors named, and the legacies were paid. The Little Sisters of the Poor declined to act as trustees under paragraph fifteenth, and the court of probate appointed the Merchants Trust Company trustee thereunder as well as under other paragraphs bequeathing income only. The plaintiff, as successor trustee, brought, in 1935, this action for determination of certain questions concerning the gift to the Society of St. Vincent De Paul, not involved in this appeal, and for adjudication: (1) " Whether the gift under paragraph 15 of the will is valid." (2) " Whether or not the doctrine of approximation may and should be applied to the gift under said paragraph 15; or whether the trustee should hold such funds for accumulation until it shall be possible literally to carry out the purpose of the testator." (3) " Whether, if such gift under paragraph 15 is valid, the plaintiff trustee may hold the funds thereunder, and if so upon what terms and conditions may it hold and manage such funds."

Admitted allegations of the complaint include that the fund held by the plaintiff under paragraph fifteenth ($27,746.79) with additions to be made from principal under other paragraphs, amounting to about $3,877, in the opinion of the trustee is inadequate and insufficient to carry out the purposes and intentions of the testator strictly in accordance with the language of that paragraph. It is impracticable and impossible to establish and provide a home for the aged worthy poor in Waterbury, through the expenditure of the income of such funds, and in the opinion of the trustee, the attempted literal application of the income of the fund not only would be inadvisable and unwarranted, but would defeat the dominant intent and main purpose of the testator. The building up of the capital of such fund through the accumulation of income to a point so that the direction of the testator could be followed literally and precisely would require an indefinitely long period of time, while there is and continuingly will be need for the current administration of such fund to benefit the aged worthy poor of Waterbury. There is not now in existence any home in Waterbury for the aged poor, but there are various institutions now in existence which render, and are in position to render, charitable services to the aged poor, among them being St. Mary's Hospital and the Waterbury Hospital, and in the opinion of the trustee the essential purpose and intention of paragraph fifteenth can best be effectuated by authorizing the trustee to use the net income for the shelter, support, and care of aged worthy poor of Waterbury, within either St. Mary's Hospital, Waterbury Hospital, their own homes, the homes of others, or other institutions.

The defendants, who are the heirs at law of the testator, claimed in their answer that the doctrine of approximation cannot be applied, that the trustee has no right to hold the fund until by accumulation it becomes sufficient to literally comply with the bequest, that the gift is invalid, and that the principal and accumulated interest now belong and are distributed to them.

The trial court held that the gift is valid, and that the doctrine of approximation may and should be applied, and rendered judgment directing the trustee " to consolidate the principal and income of the funds in its hands into one fund to be denominated ‘ the Eunice A. Panneton Fund,’ in memory of the deceased wife of the testator, to be permanently held by it and its successors as trustee for the purposes hereinafter set forth." From this fund, the trustee is directed to pay $500 allocated to the Society of St. Vincent De Paul under the issues pertaining to the gift to that organization and the sums allowed as counsel fees and expenses. " The net income of the balance shall be expended by it and its successors as trustee in its and their discretion for the shelter, support and care of the aged, worthy poor of said Waterbury within either St. Mary's Hospital, or the Waterbury Hospital, both located in said Waterbury, or within their own homes, the homes of others, or other institutions."

It appears from the memorandum of decision that the trial court regarded Shannon v. Eno, 120 Conn. 77, 179 A. 479 as decisive of the crucial question-applicability of the doctrine of approximation-and that case is clearly determinative unless distinguished because of differences in operative facts so material as to vitiate its...