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general rule is that all one's property is liable for his debts.
But to that rule there are many exceptions. All property
exempt by statute from attachment is within the exception ;
so is ordinary trust property designed to secure a main-
tenance for some unfortunate debtor; so also the income of
trust property where it is payable to the beneficiary at the
discretion of the trustee. The exceptions indicate unmis-
takably that it is the policy of the law not to take from the
debtor his means of subsistence — not to take from him his
necessary daily food and clothing.

Now in this case • the estate is small, barely sufficient to
raise an annual income of two hundred dollars, out of
which, except as the principal may be resorted to for that
purpose, three persons are to be supported. While a court
of equity will lend its aid to appropriate the surplus of
trust funds, after affording a reasonable support to the cestm
que trusty to the payment of his debts, yet we apprehend
that it will not interfere to deprive a widow of a pittance,
confessedly too small for her support, left by her husband
for that purpose. In Q-enet v. Beekman^ 45 Barb., 882, the
marginal note is : " It is only in cases where a clear surplus
will exist, after a reasonable sum has been appropriated to
the support of the person for whose benefit a trust was
created, that courts of equity are authorized to interfere in
behalf of judgment creditors, and divert a portion of the



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496 HARTFORD DISTRICT.

Tuttle V, Town of Winchester.

income or annuity to the payment of the debts of such
person."

Again : the interest of this mother, even if it was capable
of separation, could not be separated from the interests of
the daughters and transferred to creditors without seriously
interfering with or entirely defeating the purposes of the
trust. The supposed justice to creditors may and probably
would work grievous injustice to third persons ; and when
such will be the result it requires no argument to show that
a court ought not to interfere. But the interest of the widow
is inseparable from that of the daughters. The income is
small — clearly insuflBcient for their comfortable support —
and some portion of the principal, how much the court was
unable to find — will be required for that purpose- It is
equally impossible to tell how much will hereafter be re-
quired for the support of tlie widow alone, or either of the
daughters. Any one of the beneficiaries may at any time
be in a situation to require the whole income. Under these
circumstances it is impossible to fix upon any definite por-
tion of the income ,and say that that shall be appropriated
to the payment of the widow's debts. We are therefore
disposed to approve the principle enunciated in Ontario
Bank v. Boot^ 3 Paige, 482, so far at least as to apply it to
a case in which the trust fund is as small as it is in the
present case, that ^^ the interest of a judgment debtor in a
trust created partly for his benefit and partly for the benefit
of another, cannot be taken on execution."

We advise judgment for the defendants.

In this opinion the other judges concurred.



Constant L. Tuttle vs. The Town of Winchbsteb.

The statute (€kn. Statutes, p. 282, sec 10,) provides that any person.
Injured in person or property by means of a defective road or bridne,
may recover damages from the party bound to keep it in repair; but thit



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JANUARY TERM, 1888. 497

Tuttle V. Town of Winchester.

no action dhall be maintained " unless written notice of such injury, and
of the time and place of its occurrence, shall within sixty days thereafter
be given." A notice was given to the selectmen of the defendant town
as follows: **Tou are hereby notified that C. T, of the town of B, was
injured in his person and property by reason of a defective highway and
want of railing on its sides, located in said town of TT., and that this
injury occurred on the 11th of September, 1879, on this highway, leading
from the East Street Park, so called, in TF., past the old G, H, place to
if., and near the house of P. M. in said W" Held to be sufficient
both as to the i»lace where the injury was received, and as to the charac<
ter of the injury.

Action on the case for an injury from a defective high-
way of the defendant town ; brought to the Superior Court
in Litchfield County, and tried to the jury, on a general
denial, before Stoddard^ J. A verdict was returned for the
defendants, and the plaintiff appealed to this court, on the
ground of error in a ruling of the court. The case is fully
stated in the opinion.

T. M. Malibie^ for the appellant.

A* H. Fenn, for the appellees.

Park, C. J. The plaintiff seeks to recover damages
from the defendants for injuries, which he claims to have
received in his person and property, in consequence of the
want of a suflBcient railing by the side of a highway in the
defendant town, which highway they were bound to keep in
proper repair. On the trial of the cause in the court below
the plaintiff offered in evidence the following written notice
to the defendants, as a sufficient compliance with the statute
on the subject : —

" To the Selectmen of the town of Winchester in Litch-
field County.

** You are hereby notified that Constant L. Tuttle of the
town of Barkhamsted in said county, was injured in his
person and property by reason of a defective highway and
want of railing by the sides of the same, located in said
Winchester ; and that this injury occurred on the 11th day

Vol. l.— 32



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498 HARTFORD DISTRICT.

Tuttle V, Town of Winchester.

of September, 1879, on this highway, leading from the East
Street Park, so called, in Winchester, past the old Gideon
Hall place to New Hartford, and near the house of Patrick
McKee in Winchester. Dated at Barkhamsted this 12th
day of September, 1879. Constant L. Tuttlr"

The defendants objected to the notice as insufficient in
regard both to the place and to the injury received, and the
court rejected the evidence. This ruling of the court raises
the only question in the case.

The statute with regard to the notice to be given in such
cases, is as follows: — "Any person injured in person or
property by means of a defective road or bridge, may re-
cover damages from the party bound to keep it in repair;
but no action for any such injury received subsequently to
the seventh day of July, 1874, shall be maintained against
any town, city or borough, unless wi-itten notice of such
injury, and of the time and place of its occurrence, shall,
within sixty days thereafter, be given to a selectman of such
town, or to the clerk of such city or borough." . Gen. Stat-
utes, p. 232, sec. 10.

We will first consider whether the notice was sufficient in
regard to the place where the injury is said to have occurred.
In the case of Shaw v. Totvn of Waterhury^ 46 Conn., 264,
this court used the following language in regard to the
object of the statute requiring notice to be given in such
cases : — " The obvious purpose of this requirement is, that
officers of municipal corpofations, against which suits for
injuries are about to be instituted, shall have such pre-
cise information ^& to time and place as will enable them to
inquire into the facts of the case intelligently." It is obvi-
ous that in many cases exactness of statement as to place
cannot be expected, for the excitement and disturbance
caused by the accident as well as often the pain which a
person injured suffers, make it impossible to observe with
any carefulness the place where the accident occurs, and
often the person injured is unable to revisit the place witliin
the time allowed by the statute for the giving of notice. In
such cases reasonable definiteness is all that can be expected



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JANUARY TERM, 1888. 499

Tattle V, Town of Winchester.

or should be required. If the description of the place will
enable the town, city or borough, through its proper officers,
to ascertain the place by the exercise of reasonable diligence
for the purpose, it will be sufficient.

We do not understand that the cases cited by the defend-
ants from Vermont and Massachusetts conflict with this doc-
trine. In the case of Sblcomb et va, v. Danby^ 61 Verm.,
428, the court say that the place must be described in the
notice "with reasonable particularity." In the case of
Larhin v. Boston^ 128 Mass., 521, the court say that " there
can be no doubt that the legislature, in requiring the party
to be notified of the place, intended such notice of the local-
ity as to enable the precise spot where the injury was re-
ceived to be ascertained with substantial or reasonable
certainty ; " and that the circumstances of a particular case
may be such that " the name of the street, alley, or coui-t,
would designate the spot where the injury was received,
with substantial or reasonable certainty." This was said in
a case where the defect which caused the injury was in the
road-bed itself, a mere place, with nothing to distinguish it.
Much more might it be said in a case like this, where the
defect extended along the highway for a considerable dis-
tance, and could readily be discovered ; for it consisted in
the want of a railing by the side of the highway, where the
road-bed was so raised above the adjoining ground as to
require it. In such a case it was not so important to the
town to know the precise spot along the defective way
where the plaintiff went off the road and down the embank-
ment with his horse and carriage. The notice describes the
place where the accident occurred as being on the highway,
near the house of Patrick McKee in the town of Winches-
ter, where the highway is defective from the want of a rail-
ing. It does not appear that the highway was defective for
this cause at any other place in that vicinity. If it had
been the defendants would have been very ready to show
it. Suppose the notice had described the place as being on
the highway near the house of - McKee where there was a
huge bowlder by the side of the highway ; and no other



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500 HARTFORD DISTRICT.

Tnttle o. Town of Winchester.

bowlder answering the description could be found in that
vicinity; would not the description be suflScient? And
would the description be more precise in pointing out the
defect than it is here ? And further, the plaintiff says by
his notice that he was injured in his person and property by
going off the highway at the place described ; giving the
defendants to understand thereby that he went off with a
horse and carriage. The notice was given to the defend-
ants the day after the injury occurred. If the defendants
had gone to the place described within a reasonable time
after receiving the notice, the marks upon the ground, in
connection with the notice, would have informed them of
the precise spot where the plaintiff went down the bank
and received his injury. We think the notice is suflBcient
so far as the description of the place where the injury
occurred is concerned.

Is it suflScient in describing the injury received ? The
statute provides that " any person injured in person or pro-
perty by means of a defective road or bridge, may recover
damages from the party bound to keep it in repair." He
may therefore recover some damage for an injury thus
received, however slight it may be. The notice states
that the plaintiff wa» injured in his person and property.
There may be actionable injuries to which no other de-
scription can be given. Oftentimes serious injuries do not
develop themselves until long after they are received. But
the statute is entirely silent in regard to the statement of
the injury in the notice. The defendants contend that the
words "such injury," as used in the statute, have refer-
ence to the character of the injury received, and require
that the injury shoald be particularly described in the
notice; but clearly these words refer solely to the man-
ner in which the injury was received, namely, by means
of a defective road^ or bridge- This appears from the
context, which is **but no action for any such injury
[that is, the injury previously described, arising from a
defective road or bridge] -shall be maintained, * * •
unless written notice of such injury * * • shall be



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JANUARY TERM, 1888. 601

FaMeld v. Lawson.

given." Manifestly the two phrases in the same sentence
have the same meaning. We think the written notice in
this case contains all that the statute requires.

The decisions in the states of Vermont and Massachusetts
are based upon statutes very different from our own in this
respect, and therefore they throw no light upon the present
inquiry.

We think there is error in the judgment appealed from,
and it is therefore reversed and a new trial ordered.

In this opinion the other judges concurred.



Samuel E. Faibfteld, Exeotjtor, vs. Edwin N. Law-
son AND OTHSBS.

A testator gave certain property to a trustee, for the use of his widow dur-
ing her life, and after her death " the income to be devoted to the educa-
tion of the f reedmen, and paid over annually to the proper officers of the
Freedmen's Association for that purpose by the trustee." The term
** freedmen " was one generally applied to the lately emancipated slaves
and their descendants. There were ntunerous organizations which had
for their object the education of these x)eople, but no one which bore the
name of Freedmen' s Association. Held —

1. That evidence that the testator told the scrivener Y^ho drew the will
that he wanted to give the income of the property in trust for the edu-
cation of the freedmen, and that there was a freedmen's association or-
ganized by the Methodist church people in Cincinnati, and that he wanted
it payable to the officers of that association, was inadmissible.

2. That the trustee could not appropriate the income for the education of
the freedmen as a class.

The power given the trustee was merely to pay the income to the proper
officers of the Freedmen's Association. The court could not prescribe
an additional duty without making an addition to the will.

Besides, the freedmen were several millions in number, and no power was
given to the trustee, or to any one, to select the individuals who should
receive the benefit. Every individual would therefore have a right to share
in the boimty, and it would be impossible to administer the trust.

If a charity does not fix itself on a particular object, but is general and
indefinite, and no plan is prescribed and no discretion given in the will
for the selection of the beneficiaries, it does not admit of judicial admin-

• istration.



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602 HARTFORD DISTRICT.

Fairfield v. Lawson.

Under the rale which admits parol evidence in cases of ambiguity, to
aid in the construction of a will, it is necessary that the words of the
will should describe accurately the subject or object of the gift, and t^
the parol evidence should go only to show which of certain properly
described subjects or objects was intended.

Another item in the same will was as follows: ''I give to my executor ill
my real estate, to be sold, and the proceeds held in trust for the educa-
tion of the freedmen, and the incoihe to be paid by him to the proper
officers of the Freedmen's Association, or disposed of as he pleases.''
Held—

1. That the trust adhered to the proceeds in the hands of the executor,
even though the trust failed as to the Freedmen' s Association.

2. That it became then a gift upon tnist, with no provision as to who should
take the benefit of it, and therefore could not be carried out.

3. That the fund became intestate estate, and that the executor took noth-
ing personally.

Suit asking for the construction of a will ; brought to
the Superior Court in Tolland county. The following facts
were found by the court : —

David Lawson, the testator, died February 10th, 1881,
leaving real estate of the value of $12,000 and personal
estate of the value of $9,688. He left a will, made ia
1868, which was proved after his death, and which contained
the following clauses :

" I give unto William M. Corbin three thousand three
hundred and fifty dollars, in trust for my wife, Polly Law-
son. Said trustee shall pay her the interest of said sum of
money in manner following * * so long as she shall live.
And from and after the death of my said wife, the interest
shall be used and employed and devoted to the education
of the freedmen, and the interest shall be paid over annu-
ally to the proper ofiBcers of the Freedmen's Association
for that purpose by the said trustee.

" I devise unto my executor hereinafter named, all of my
real estate in whatever place situated, the same to be sold
by him after my decease, and the proceeds to be held by him
in trust for the education of the freedmen, and the annual
interest and income arising from the same to be paid by
him to the proper oflScers of the Freedmen's Association, or
to be disposed of and used as he pleases.

" I give unto my executor hereinafter named all the rest



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JANUARY TERM, 1883. 608

Fairfield v. Lawson.

and residue of my estate, to be disposed of by him in man-
ner following : that is to say, the sum of five hundred dol-
lars to be expended in erecting a suitable monument over
my grave ; and after the payment of expenses of settling
my estate, the remainder shall be held in trust by my said
executor for the education of the freedmeb, and the inter-
est shall be paid over annually to the proper officers or
persons of the Freedmen's Association by my said executor.

" I do hereby constitute and appoint Samuel E. FairiSeld,
Esq., executor of this my last will and testament."

At the date of the execution of the will and at the time
of the death of the testator there had not been established
any voluntaiy association nor any corporation known as the
"Freedmen's Association." There were, however, in exist-
ence at the first mentioned date divers associations, organ-
ized for and engaged in the work of educating the freed-
men. " The Hartford Freedmen's Aid Society," a voluntary
association, was organized for that purpose in June, 1865,
and continued in the work until June, 1869, when it ceased
to exist. "The New England Freedmen's Aid Society,"
another voluntary association, located at Boston, Mass.,
was also then in existence and continued in that work until
1871, when it ceased to exist. There was also " The Freed-
men's Bureau," organized under the laws of the United
States, March 3, 1865. This organization ceased to exist
long before the death of the testator. There was also in
existence at the date of the execution of the will, " The
American Missionary Association," a body corporate by the
laws of the state of New York, incorporated in 1849, for
the purpose of sending the gospel to the destitute in our
our own and other countries, but at said date they were
actively engaged and ever since have been and still are
in the work of educating the freedmen as well as preaching
the gospel to them.

At the date of executing the will there was also a volun
tary association of individuals connected with the Methodist
Episcopal Church engaged in the work of educating the
freedmen, known by the name of "The Freedmen's Aid



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604 HARTFORD DISTRICT.

Fairfield v. Lawson.

Society of the Methodist Episcopal Church, located at Cin-
cinnati, Ohio." This was organized August 8th, 1866, and
continued to exist as a voluntary association until Novem-
ber 17, 1870, when it ceased to exist as a voluntary associa-
tion, and upon application of its members a corporation
was organized under the laws of the state of Ohio under
the same name and located at the same place. The object
of the voluntary association, as stated in its articles of
agreement, was — " to labor for the relief and education of
the freedmen, especially in co-operation with the Mission-
ary and Church Extension societies of the Methodist
Episcopal Church." In its constitution or articles of in-
corporation the object is stated in the same words except
that after the word " freedmen " are added the words " and
others." The articles for the government of the voluntary
association were not identical with, but in some respects
radically different from those of the corporation. The
former was under the control of a board of managers, con-
sisting of the bishops of the Methodist Episcopal Church,
two persons, one tninister, and one layman, named by any
annual conference organizing an auxiliary society, together
with certain persons, thirty-six in all, named, and suoh
others as might be thereafter elected at any quai'terly or
annual meeting of the society, while the corporation was to
be governed by a board of directors (nineteen persons
being mentioned), and their successors, who were to be
elected annually. Since the organization of the corpora-
tion it has been and still is actively engaged in the work of
educating the freedmen.

Neither the latter organization nor any other voluntary
association or corporation has appeared and claimed the
legacies mentioned in the will, payable to the proper ofiBcers
of the " Freedmen's Association," although the officers of
the "Freemen's Aid Society of the Methodist Episcopal
Church " have had notice of the terms of the will and of
the pending litigation.

There was no evidence whatever before the court to show
that the last mentioned organization was intended by the



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JANUARY TERM, 1888. 606

Fairfield v. Lawson.

testator, except his verbal declarations as hereinafter men-
tioned.

The plaintiff offered Samuel E. Fairfield as a witness,
who testified that he drew the will in question at the dicta-
tion of the testator, who said he wanted to give the income
of the property in question in trust for the education of the
freedmen, that there was a Freedmen's Association organ-
ized by the Methodist Church people, located in Cincinnati,
Ohio, and that he wanted it payable to the officers of that
association.

This evidence was received subject to the defendants'
objection. If legally admissible for the purpose, the court
finds that wherever in the will the testator refers to the
**Freedmen's Association" he intended the voluntary asso-
ciation known by the name of " The Freedmen's Aid Soci-
ety of the Methodist Episcopal Church," located at Cincin-
nati and organized August 8th, 1866.

If, on the other hand, the verbal declarations of the
scrivener are not admissible or competent to prove the fact
above stated, then I find that there is no evidence whatever
to identify the object of the testator's bounty, described as
the Freedmen's Association, and it is impossible for the
court to determine it.

The court further finds that the term "freedmen," as
used in the will, refers to that class of pei'sons in the
United States who were emancipated from slavery during
our late civil war or by its results, and embraces also the
descendants of such persons.

Upon these facts the following questions were reserved
for the advice of this court : —

1. Whether the declarations of the testator were admis-
sible for the purpose stated ? And if so,

2. Whether the corporation entitled *'The Freedmen's
Aid Society of the Methodist Episcopal Church," located
at Cincinnati, Ohio, can take the legacies specifically in-
tended by the testator for the voluntary association of the
same name existing when the will was executed ?

8. Whether, if for any reason that corporation cannot



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606 HARTFORD DISTRICT.

Fairfield v. Lawson.

take, the trustees named in the will (or others to be ap-
pointed by the court for the purpose) can rightfully use
and appropriate the income for the education of the freed-
men, as constituting a definite class of persons ?

4. Whether the devise of the proceeds of the sale of th
real estate in the second item of the will is so expressed as
to vest the real estate or the proceeds thereof absolutely in
Samuel E. Fairfield in fee, or whether the devise is for any
reason void in whole or in part ?

6. Whether any clauses or provisions in said will, and if
80, which ones, are void for uncertainty, inconsistency, or
for any other cause ?

M. Jt. West and U. B. Sumner^ with whom was S. E. Fair-
field^ for the plaintiff.

1. The instructions of the testator to the scrivener, at
the time the will was drawn, were admissible. 1 Redf. on



Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 50 → online text (page 45 of 61)