Rogers v. English

• Decision Date: 22 July 1943
• Citation: 33 A.2d 540,130 Conn. 332
• Court: Connecticut Supreme Court
• Parties: ROGERS et al. v. ENGLISH et al.

130 Conn. 332

33 A.2d 540

ROGERS et al.

v.ENGLISH et al.

Supreme Court of Errors of Connecticut.

July 22, 1943.

Case Reserved from Superior Court, New Haven County; Wynne, Judge.

Action by Moses S. Rogers and others, as trustees of the estate of Constand A. Moeller, against Augusta J. English and others for construction of a will brought to the superior court and reserved by the court for the advice of the Supreme Court of Errors.

Decree in accordance with opinion.

George W. Crawford, of New Haven, for plaintiffs.

Charles M. Lyman, of New Haven, for defendants Harriet L. Stevenson et al.

Crenna Sellers and William B. Gumbart, both of New Haven (Mary E. Manchester, of New Haven, on the brief), for defendants Pearl L. Moeller et al.

Arthur B. O'Keefe, of New Haven, for defendants Arthur B. O'Keefe, guardian, et al.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

MALTBIE, Chief Justice.

Constand A. Moeller, who died a resident of New Haven on June 1, 1914, left a will in which, after directing the payment of debts and funeral expenses, he gave all his property to trustees with power to sell it, except certain stock which was to be held by them. The will then proceeds: ‘all surplus income and all avails of sales of personal property or real property shall be invested in mortgages on improved real estate in the New England States, the same to be double security for the amount loaned, and interest to be paid semi-annually in cash, and insurance and all taxes to be paid by the mortgagor; to pay to each of my children, Emma Lines, Augusta J. English, Constantina A. Rogers, Laura O. Kautz, Ida E. Konold, Constand R. Moeller, Lily E. Moeller, Herbert L. Moeller, all of said New Haven, and Clara T. Johnston, now residing in Germany, the sum of twenty-five hundred ($2500.) dollars during the first year after my decease, twenty-six hundred ($2600.) dollars during the second year after my decease, and thereafter such annual payment to each of them is to be increased by one hundred ($100.) dollars per annum until the annual income of each shall reach the sum of four thousand ($4000.) dollars per annum, beyond which amount their annual payments are not to be increased; said income is to be paid to each one of said children as long as any one of them survives; in other words, the incomes as above directed, not exceeding four thousand ($4000.) dollars a year, are to be paid to each of my said children up to the death of the last survivor, but none of the survivors is to receive more than is above directed; said incomes above provided are to be paid to each of said legatees in equal monthly installments.’ He added further provisions that, if any of his children died leaving issue surviving, the annual payments provided for the parents should be paid to their children during their lives or to the issue of such children until the death of the last survivor of his children; that when this occurred the residue of the estate should be distributed to his grandchildren; and that the share of any grandchild who might die should be divided among his children, if any, but, in default of children, among the surviving grandchildren.

The plaintiffs, the trustees under the will, brought this action seeking a construction of certain provisions in the portion we have quoted. They are actively seeking a judgment that they be given power to make investments other than in mortgages meeting the description contained in the will, specifically, bonds of the United States or other investments which are legal for trustees in Connecticut. As certain of the interested parties also urge that such a judgment be entered, we pass, without discussion, the question whether it is a proper function of the trustees to seek such relief. See Belfield v. Booth, 63 Conn. 299, 309, 27 A. 585; Jacobs v. Button, 79 Conn. 360, 362 note, 65 A. 150, 151.

In the Restatement, 1 Trusts, § 167(1), it is stated: ‘The court will direct or permit the trustee to deviate from a term of the trust if owing to circumstances not known to the settlor and not anticipated by him compliance would defeat or substantially impair the accomplishment of the purposes of the trust; and in such a case, if necessary to carry out the purposes of the trust, the court may direct or permit the trustee to do acts which are not authorized or are forbidden by the terms of the trust.’ We have recognized this principle in Russell v. Russell, 109 Conn. 187, 197, 145 A. 648, 63 A.L.R. 783. See also Hoffman v. First Bond & Mortgage Co., Inc., 116 Conn. 320, 328, 164 A. 656. It is by no means clear that the question of the application of this principle is presented by the questions stated in the reservation. The relief sought obviously calls for the exercise of the equitable power of the court to permit a deviation from the express intent of the testator, not for the ascertainment of the intent disclosed in the terms of the will, which in this instance are perfectly clear. Trust Co. of N. J. v. Glunz, 119 N.J.Eq. 73, 77, 181 A. 27. As the question has, however, been argued before us without objection from any party and our answer must be in the negative, we have decided to consider it.

The contention in support of the rendition of such a judgment rests largely upon the claimed difficulty the trustees have in finding such mortgages as are described in the will in which they can invest money of the estate and upon the low interest rates on mortgage notes now claimed to be prevalent. The stipulation of facts upon which we must decide the case does not expressly refer to either of these matters. On the other hand, it does appear that in the year 1942 the trustees invested more money in new mortgages than they had in any year since the beginning of the trust except the years 1919 and 1928; that the percentage of yield on mortgages in 1942 had been exceeded in only two years since 1920; that the gross and net incomes of the estate were higher in 1942 than they had ever been; that while the cash on hand at the end of the year amounted to some $100,000, this would be only about 5 per cent of the value of the estate, and it does not appear from what source this cash was derived; and that the amount of cash on hand at the end of two previous years, 1936 and 1941, was larger, and at the end of 1935 almost as large. Moreover, since 1935 the income from the trust has in every year considerably exceeded the amounts directed to be paid to the beneficiaries designated in the will. Certainly we cannot hold as matter of law that the trustees have been so hampered in finding such mortgages as are described in the will as seriously to jeopardize the interests of the estate, or that the restriction has interfered with the accomplishment of the testator's primary intent in providing for annual payments to his children. In Russell v. Russell, supra, 109 Conn. 198, 145 A. 652, we said, after referring to certain cases: ‘These authorities point out, and the very nature of the authority given trustees under this principle necessarily requires, that it should be most carefully and sparingly used, and it is to be borne in mind that it is the necessity of the situation which brings it into operation, not the mere fact that thereby the estate may be administered in a way which will be more advantageous to its beneficiaries.’ See 3 Bogert, Trusts and Trustees, § 561, p. 1798. The stipulated facts do not present a situation which justifies permission to the trustees to deviate from the instructions in the will as to the manner in which they shall invest funds of the estate.

The claim most strenuously pressed upon us is that of certain of the annuitants, who contend that the trustees may, in view of existing circumstances, make larger annual payments to the beneficiaries than those specified in the will. They point to various changes which have taken place in the economic conditions since the death of the testator; the imposition of the federal income tax, the effect of which is to decrease the amounts of payments to the beneficiaries which they can use for their own purposes; the increase in the cost of living and the decrease in the purchasing power of the dollar. They claim that an increase in the annual payment is necessary to accomplish what they contend to have been the general intent of the testator, to provide comfortable support for his children or, as stated in one place in their brief, to provide a standard of living in keeping with that which he had taught them to expect; that the fixing of the amount of the annuities was a special intent, which, if in conflict with this general intent, must yield to it; and that the changes in circumstances to which we have referred have produced such a conflict. We are, of course, confined to the intent expressed in the will and may not go outside of it in the effort to give effect to what we conceive to have been the actual intent of the testator, much less his ‘motive,’ to quote an expression from the brief of these parties, in making the provisions he did.

There is nothing in the terms of the will in the least indicative of an intent on the part of the testator that the fixing of the amounts to be paid was a mere incident of a purpose to provide for his children a comfortable...