Shannon v. Eno

• Decision Date: 04 June 1935
• Citation: 179 A. 479,120 Conn. 77
• Court: Connecticut Supreme Court
• Parties: SHANNON v. ENO et al.

179 A. 479

120 Conn. 77

SHANNON v. ENO et al.

Supreme Court of Errors of Connecticut.

June 4, 1935

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

Action by Thomas J. Shannon, administrator c. t. a. of the estate of Anna J. E. Eno, against Frank C. Eno and others for the construction of decedent's will. From a judgment construing the will, defendants Phoebe Lewis and others appeal.

Error and case remanded.

Distribution to husband of life use of deceased wife's real estate free from condition, on husband's election to take statutory share in lieu of provision in wife's will, held improper, under rule requiring that general legacies be first applied to satisfy husband's statutory share, where will attached conditions to husband's life use of real estate.

Ellsworth B. Foote, David E. FitzGerald, and John Clark FitzGerald, all of New Haven, for appellant Frank C. Eno.

Charles M. Lyman and Clarence W. Bronson, both of New Haven, and William F. Healey, of Derby, for other appellants.

James E. Rhodes, 2d, of Hartford, for appellees Gertrude S. Booth and others.

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

MALTBIE, Chief Justice.

This action, seeking the construction of certain provisions in the will of Anna J. E. Eno, came before the superior court for decision upon the facts admitted in the pleadings. Certain related questions arise as to the twentieth and twenty-first paragraph of the will. The twentieth paragraph reads as follows: " I give the sum of two thousand dollars for the purpose of founding and supporting a Cattery, to be situated in or near Ansonia, for the care of homeless animals and boarders." In the fourth paragraph of the will the testatrix gave to her husband a certain sum of money " in trust, however," the income to be paid to him semiannually during his life, " together with" the use of certain real estate on Franklin street in Ansonia, these gifts being subject to certain conditions; and in the twenty-first paragraph she devised and bequeathed the real estate at his death, or should he not meet the conditions named, " to be used as and for an Old Ladies Home for worthy poor protestant women over sixty years of age, residing in and inhabitants of the towns of Ansonia, Derby and Seymour" ; and she made a further gift to " said Old Ladies Home, when established," of the sum of $5,000 and the household furniture and fixtures not otherwise disposed of in the will. In the twenty-fourth paragraph she appointed her friend Reuben H. Tucker " as executor and trustee of my estate, and of this my last will and testament."

While the twentieth and twenty-first paragraphs do not expressly state that the devise and bequests contained in them are made in trust, it is obvious that the provisions could only be executed through the intervention of a trustee, and it sufficiently appears from the will as a whole that she intended these gifts to be in trust. Beardsley v. Selectmen of Bridgeport, 53 Conn. 489, 492, 3 A. 557, 55 Am. Rep. 152; Ryder v. Lyon, 85 Conn. 245, 82 A. 573; Brinsmede v. Beach, 98 Conn. 322, 336, 119 A. 233; Cheshire Bank & Trust Co. v. Doolittle, 113 Conn. 231, 232, 115 A. 82. The paragraphs of the will other than those we have mentioned contain directions to the executor or gifts to individuals or corporations. When, in the twenty-fourth paragraph, the testatrix appointed Reuben H. Tucker " trustee of my estate" it was evidently her intent that he should as such trustee hold and manage the property disposed of in the fourth, twentieth, and twenty-first paragraphs. A devise and bequest of the property to him as such trustee is implied. Ryder v. Lyon, supra, 85 Conn. 245, page 250, 82 A. 573; Angus v. Noble, 73 Conn. 56, 62, 46 A. 278; Shepard v. Union & New Haven Trust Co., 106 Conn. 627, 633, 138 A. 809. That Reuben H. Tucker died before the testatrix, as the admitted facts show, would not destroy the trust, if otherwise valid, for the court could appoint another trustee. Dailey v. New Haven, 60 Conn. 314, 325, 22 A. 945, 14 L.R.A. 69; Babcock v. African Methodist Episcopal Zion Society, 92 Conn. 466, 473, 103 A. 665; City Missionary Society v. Moeller Memorial Foundation, 101 Conn. 518, 528, 126 A. 683; Hartford National Bank & Trust Co. v. Oak Bluffs First Baptist Church, 116 Conn. 347, 356, 164 A. 910.

The intention of the testatrix in making the gift in the twentieth paragraph was obviously to afford care and protection to and alleviate the sufferings of that class of animals which by domestication contribute to comfort, pleasure, and well-being of man; and it is not questioned that such a gift is a proper charitable use. Minns v. Billings, 183 Mass. 126, 130, 66 N.E. 593, 5 L.R.A. (N. S.) 686, 97 Am.St.Rep. 420; In re Graves' Estate, 242 Ill. 23, 89 N.E. 672, 24 L.R.A. (N. S.) 283, 134 Am.St.Rep. 302, 17 Ann.Cas. 137; In re Coleman's Estate, 167 Cal. 212, 214, 138 P. 992, Ann.Cas. 1915C, 682; 66 A.L.R. 465, note. Nor are the terms of the gift in this paragraph too uncertain in themselves to constitute a valid trust. Mack's Appeal, 71 Conn. 122, 135, 41 A. 242; Eliot's Appeal. 74 Conn. 586, 51 A. 558; Brinsmade v. Beach, supra.

With reference to the gift in the twenty-first paragraph, it is argued that as the property is devised and bequeathed to establish a home for " worthy protestant women over sixty years of age" residing in the three towns named, and no power is given to the trustee to select from among them the particular persons who are to be admitted to the institution, the trust is void for uncertainty. In White v. Fisk, 22 Conn. 31, we had before us a will in which the testator made a devise and bequest of his property to two individuals as trustees, with a provision that they expend a portion of the income " for the support of indigent pious young men preparing for the ministry in New Haven, Connecticut." We held this gift to be void for uncertainty. We pointed out that the gift was not to any college or institution, nor to any association of persons corporate or voluntary, which had or might have an interest in the object of the charity and rules for its management; we distinguished cases where in gifts of like nature a power in the trustee to discriminate or select or to apportion the application of funds was " certainly conferred" or " clearly given" ; and we held that the terms of the will before us were not such that the necessary power of selection would be implied.

In so far as it was held in that case that a gift, though in the nature of a charity, made directly to a class of beneficiaries generally defined is too uncertain for enforcement and that it is necessary either that the will establish a mode of selecting the individual persons to be benefited or that a power to make such selection be conferred upon the trustee or some one else, we have followed that decision. Treat's Appeal, 30 Conn. 113, 116; Adye v. Smith, 44 Conn. 60, 70, 26 Am. Rep. 424; Fairfield v. Lawson, 50 Conn. 501, 513, 47 Am. Rep. 669; Coit v. Comstock, 51 Conn. 352, 379, 50 Am. Rep. 29; Bristol v. Bristol, 53 Conn. 242, 257, 5 A. 687; Strong's Appeal, 68 Conn. 527, 531, 37 A. 395; Hoyt v. Bliss, 93 Conn. 344, 351, 105 A. 699. But beyond this general principle White v. Fisk has ceased to be authoritative. Thus in Goodrich's Appeal, 57 Conn. 275, 18 A. 49, we sustained a gift to an individual in trust for a Protestant Episcopal Society, the income " to be given to the poor of said society," holding that the trustee was to distribute the income to such poor persons as the rector of the society might select; in Conklin v. Davis, 63 Conn. 377, 383, 28 A. 537, we sustained a gift to the trustees of a church " in trust for the poor of the church" ; in Eliot's Appeal, 74 Conn. 586, 598, 51 A. 558, where property was given in trust " for the aiding of destitute seamen," we held that the power to select the particular members of the class to be benefited was necessarily implied; in Weeks v. Mansfield, 84 Conn. 544, 80 A. 784, we had before us a trust gift " for the support of ‘ indigent Insane persons" ’ and we treated the trust as a valid one; and in none of these cases was any power of selection given to the trustee, except such as might be implied from the terms of the gift itself. So we have ceased to follow the distinction drawn in White v. Fisk between gifts to trustees who are individuals and those made to corporate or voluntary associations. Thus where property was given to a city in trust to apply the income " for the supply of fuel and other necessaries to deserving indigent persons not paupers, preferring such as are aged or infirm," we held that the city was without power to accept the trust, but said that application could be made to the court for the appointment of a trustee or trustees to administer it. Dailey v. City of New Haven, 60 Conn. 314, 325, 22 A. 945, 14 L.R.A. 69.

Our law may be summed up to this effect: If property is given for a charitable use in trust for the benefit of a certain class of persons defined with reasonable certainty, and in order to execute that trust a power of selection in the trustees or some one else is necessary, that power will be implied; and in the application of this rule no distinction is made between trustees who are corporate or voluntary associations and those who are individuals, Tappan's Appeal, 52 Conn. 412, 417; New Haven Young Men's Institute v. City of New Haven, 60 Conn. 32, 40, 22 A 447; Woodruff v. Marsh, 63 Conn. 125, 26 A. 846, 38 Am.St.Rep. 346; Hayden v. Connecticut Hospital for Insane, 64 Conn. 320, 324, 30 A. 50; Eliot's Appeal, 74 Conn. 586, 598, 51 A. 558; Dwyer v. Leonard, 100 Conn. 513, 517, 124 A. 28. Indeed, to so hold is but to carry out what must have been the...