Foley v. Hastings

• Decision Date: 23 November 1927
• Citation: 107 Conn. 9,139 A. 305
• Court: Connecticut Supreme Court
• Parties: FOLEY v. HASTINGS.

139 A. 305

107 Conn. 9

FOLEY v. HASTINGS.

Supreme Court of Errors of Connecticut.

November 23, 1927

Case Reserved from Court of Common Pleas, Hartford County; Thomas J. Molloy, Judge.

Application by Walter F. Foley for an order requiring trustee of a fund of which defendant Forde H. Hastings is beneficiary, to pay to plaintiff amount of judgment rendered in his favor against defendant. On reserved questions on agreed statement of facts. Questions answered.

Provision authorizing trustee to " apply and use" income for beneficiaries authorized trustee to withhold income from beneficiaries and expend it for them.

Walter F. Foley, of Hartford, pro se.

Walfrid G. Lundborg, of Hartford, for Middletown Trust Co. conservator.

Reinhart L. Gideon, of Hartford, for Hartford-Connecticut Trust Co. trustee.

MALTBIE, J.

The informal procedure which has been followed in this action would be sufficient reason to decline to entertain this reservation. As, however, the questions propounded must of necessity be determined in some way, all the necessary parties have appeared before us, and the proper administration of trusts is peculiarly a matter calling for the aid of the court, we have decided to overlook the defects of procedure and answer the questions asked.

The questions involved arise out of the provisions in the will of Frances Z. Niles. In the fifth article of that instrument she gives one-third of the residue of her estate to a trust company with the following provisions:

" To hold, manage and invest the same, with power of sale and reinvestment of any part thereof, real or personal at its discretion, and to divide the same into three equal parts or portions, and to pay over the net income of the respective portions to, or apply and use the same for the benefit of the children of my deceased niece, Alice Hansell Hastings, namely, Alison, Anne Frances and Forde Huntington Hastings, until they respectively attain the age of thirty (30) years, and when said Alison shall attain the age of thirty (30) years, to pay over to her all property then held in trust for her, to be hers absolutely; and when said Anne Frances shall attain the age of thirty (30) years, to pay over to her all property then held in trust for her, to be hers absolutely; and when said Floyd attains the age of thirty (30) years, to pay over to him all property then held in trust for him, to be his absolutely; and I further authorize the trustee if at any time the income is in its discretion insufficient for the support, maintenance and education of any of said beneficiaries, to pay over to, or use and expend for such beneficiary, so much of the principal of the property then held in trust for him or her as the trustee in its discretion may deem necessary for that purpose."

The sixth article then provides:

" No part of the income or principal of any property given in trust under this will shall be subject to anticipation, alienation or assignment by any beneficiary."

On January 25, 1926, the defendant executed an instrument reciting:

" I, Forde H. Hastings, hereby transfer and do assign to said A. S. Albrecht, attorney, two hundred nine and eighty-five cents ($209.85) of the income from a trust fund established by the will of Frances Z. Niles, which trust fund is in the custody of the Hartford-Connecticut Trust Company, Trustee. * * * I direct that the Hartford-Connecticut Trust Company, trustee of said fund, pay to A. S. Albrecht, attorney, the above-named amount from the income that is due or may become due me, until said amount is fully paid, and I further direct that this assignment be preferred as against any that I may have given to date or may give hereafter."

On June 30, 1926, the defendant executed an instrument reciting as follows:

" I hereby assign to Walter Gildersleeve or order, any and all interest due me, or to become due from the estate of Frances Z. Niles, to the sum of one hundred and sixty dollars ($160.00), and hereby authorize the Hartford-Connecticut Trust Company to make over to him said sum as it may become due."

The present action was begun by writ dated September 24, 1926, and the officer serving it was directed to leave a copy with the Hartford-Connecticut Trust Company as garnishee. Judgment for the plaintiff to recover $500 damages was rendered November 12, 1926, and thereafter an execution was issued and served upon the trust company, but it refused to pay over any income from the fund held by it for the benefit of the defendant.

Section 5872 of the General Statutes provides:

" Whenever property is given to trustees to pay over the income to any person, and there is no provision for accumulation, and the trustees are not expressly authorized to withhold such income, and the income is not expressly given for the support of the beneficiary or his family, such income shall be liable in equity to the claims of all creditors of such beneficiary."

The parties have assumed in the argument of this case that it falls within the terms of this statute, and we shall so treat it. The anguage of the statute is somewhat involved, and perhaps its meaning may be made more evident the words are somewhat transposed: When property is given to trustees to pay over the income to any person, that income shall be liable in equity to the claims of creditors of the beneficiary if there is no provision for accumulation, and the trustees are not expressly authorized to withhold such income, and the income is not expressly given for the support of the beneficiary or his family. It follows that, if any one of...