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a conveyance of said real estate to him.

4th. Whether said trustee is to exercise his personal dis-
cretion as to the needs and requirements of said Gideon E.
Holloway and in paying money to said Holloway on his re-
quest under said will.

5th. What money or proceeds of sale of said land said
trustee can pay to said Gideon E. Holloway, Jr., under said
will, and what rights he has to said money or proceeds dur-
ing the life of his father ?

6th. What money or proceeds of sale of said land said
trustee can pay to said Vera G. Holloway, and what rights
she has to said money or proceeds during the lives of her
father and grandfather?

7th. Whether said trustee is authorized or directed to
transfer said real estate or the proceeds to said Gideon E.
Holloway upon his simple request in writing, or whether
said trustee shall first be satisfied in the exercise of his own



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214 DECEMBER, 1889.

HuU V. Holloway.

discretion that said Holloway actually requires the same for
his necessary uses and personal maintenance and support.

All parties in interest agree that it is for the advantage of
the beneficiaries that the property be sold, and Gideon E.
Holloway having consented in writing to the sale, it becomes
the duty of the trustee under a proper order of the court of
probate to sell the property and convert the proceeds of the
sale into a trust fund, to be held for the purposes named in
the will. This disposes of the first question proposed.

The main questions of the case involve the rights of Gid-
eon E. Holloway, Sr., in the trust fund, and are suggested
by the following ambiguous language contained in one clause
of the will, a construction of which will afford a general
answer to nearly all the questions presented. This clause
reads as follows : —

" I direct that said trustee shall from time to time pay and
transfer and convey to my said husband, for his use and
benefit, so much of the income and principal of the above
named property as my said husband may require for his own
personal use ; the same to be transferred and conveyed to
my said husband upon his written request."

In behalf of Holloway it is claimed that under this clause
of the will he is entitled to full maintenance and support out
of the trust estate, as well from the principal as from the
income, without regard to any other income or means of
support he may have, and that it is obligatory upon the
trustee to transfer and pay over the same to him upon his
written request. In other words, that Holloway takes an
equitable fee or an equitable absolute interest in the por-
tion demanded by him, and that the legal title passes to
him on the transfer.

If this claim is correct Holloway can, by a single stroke of
the pen, take possession of the entire trust estate, convert
the same to his individual use, and excluding all other ben-
eficiaries under the will, terminate the trust.

Undoubtedly the language of the clause in question, stand-
ing alone, and considered without reference to the intention
of the testatrix gathered from other parts of the instrument,



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DECEMBER, 1889. 216

Hull V. HoUoway.

would admit of the construction claimed. But here, as in
another recent case, we are satisfied that such a construction
would defeat the manifest intent of the testatrix. Glover
V. Stilhon, 56 Conn., 318.

In all these cases courts are astute to discover the inten-
tion of the testator as gathered ex visceribiis testamenti, by a
careful scrutiny of the language of the entire instrument and
by the situation of all parties and their relation to the subject
matter. The struggle in such cases, observes Judge Story,
" is to accomplish the real objects of the testator so far as
they can be accomplished consistently with the principles
of law, but in no case to exceed his intention fairly deduci-
ble from the very words of the will." Nightingale v. Mason^
5 Mason, 336.

As we read this will we are convinced that the testatrix
had two special objects which she desired to compass by the
creation of the trust in question. First, as a devoted wife
she desired to make suitable provision for the possible neces-
sities of her husband ; and second, as a mother she was anx-
ious that her only son and his children might have the
benefit of any portion of the trust fund unexpended at the
decease of her husband.

To accomplish these objects she creates a trust by the fol-
lowing significant language: "This trust is to continue
during the lives of my said husband and my said son, and
duiing the life and minority of any of my said son's children,
bom as aforesaid." She next empowers the trustee to
mortgage and to sell and convey the property whenever it
may be for the advantage of the beneficiaries under the trust,
stipulating that it shall not be sold in the lifetime of her
h'usband without his consent. She forbids the use of any
portion of the trust estate for payment of the debts of her
husband or son, outstanding or thereafter contracted, pro-
vides for a disposition of the income after the death of her
husband, directs that "any portion of said income not so
expended may at the discretion of said trustee be added to
the principal of said trust fund or be reserved to meet any
extraordinary requirements of those for whose benefit said



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216 DECEMBER; 1889



Hall 9. HoUoway.



trust is created,'' and finally orders that upon the determin-
ation of the trust by the death of her husband and son or
majority of her son's children, the trust estate shall be dis-
tributed under the provisions of the statute for the distribu'
tion of intestate estates.

We cannot imagine what more explicit or forceful lan-
guage the testatrix could have chosen, to evince her deliber-
ate intent to create a trust that should permanently inure
to the benefit of both husband and son, than that contained
in the several provisions of her will above recited.

This clearly expressed intention of the testatrix is utterly
repugnant to the claim that Holloway can at his option ter-
minate the trust by his written request. We are clear that
a life estate only was intended to be created for her husband
by the testatrix ; except that in a certain emergency here-
after referred to the whole fund might be devoted to his
necessities.

It is suggested that the power of disposal given to Hullo-
way in the will, enlarges the life estate to a fee. This court
however has recently held otherwise. In Qlover v. StilUon^
mpruj Carpenter, J., says: "The power of sale may in
certain doubtful cases aid in ascertaining the intention, but
to give it an artificial and technical force, and thereby defeat
the manifest intention of the testator, is wholly inadmissi-
ble." See also Lems y. Palmer^ 46 Conn., 454; Brant v.
Virginia Coal ^ Iron Co., 98 U. S. R., 326 ; Welsh v. Wood-
bury, 144 Mass., 545.

Holloway therefore having a life interest in the trust
estate, to what extent and under what circumstances is the
trustee authorized to pay over to him any of the income^or
principal thereof? This depends upon the construction to
be given to the word " require," as used in the phrase " as my
said husband may require for his own personal use." The
word in itself is ambiguous. In behalf of Mr. Holloway it
is claimed that it must be construed to mean " to demand "
or " claim as of right and by authority." But the word "re-
quire " is as frequently and correctly used in the sense of
" to need " or " to be requisite " ; and we adopt this defini*



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DECEMBER, 1889. 217

Hull V. HoUoway.

tioD for the purposes of this case, which reconciles this clause
with the manifest intention of the testatrix as gathei*ed from
all other parts of her will, and the relation which she occu-
pied towards the beneficiaries as wife and mother.

Under this construction Mr. Holloway*s participation in
the trust fund is limited to his personal necessities. Both
income and principal are placed under the same limitation
and restriction. The testatrix did not intend that her trus-
tee should pay over to her husband either income or princi-
pal, unless an emergency arose which demanded them for
his personal suppoiii, and if such a crisis in his affairs should
arise, then she gave her trustee full power to exhaust the
entire trust fund, if necessary, in providing for his personal
support and maintenance.

The remarks of LooMis, J., in giving the opinion of this
court in the late case of Peckham v. Lego^ 51 Conn., 555, are
applicable here : — " The language necessarily implies a con-
sciousness on the part of the testatrix that she had given
only a life estate; but it occurs to her that the income may
be so limited and their circumstances so reduced that they
may lack the means of comfortable support, and she adds
the clause under consideration to meet such an emergency ;
but this clause was never intended to sweep away the life
estate. It was only to be called into play by an emergency
— ^by the needs of her beneficiaries. The right to resort to
the principal was founded on necessity and restricted by
necessity. If it should not be necessary it is all a mere life
estate ; if it is, then the restriction is that all except the ne-
cessary portion so taken remains a mere life estate."

HoUoway is presumably self-supporting and possibly pos-
sessed of property far in excess of the entire trust estate.
So long as he is able to support himself by his own exertions,
or has property available for his support, the trustee has no
right to pay over to him, on his demand or otherwise, any
portion of the income or principal of the trust fund. " The
contingency must be his actual need, and not his expecta-
tion or opinion of it." Hull v. Culver^ 34 Conn., 405.

The judgment of the trustee must concur with that of



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218 DECEMBER, 1889.

Hull V. HoUoway.

Holloway as to the necessity of the use of either income or
principal for his personal necessities. If they differ as to
such necessity, or the income or principal of the trust estate
should be wrongfully applied to HoUoway's use, the Supe-
rior Court, as a court of equity, or possibly the probate court,
would afford ample protection to all interested in the trust.

We think the foregoing considerations suflBciently answer
the second, third, fourth and seventh questions of the com-
plaint.

The fifth and sixth questions relate to the rights of Gideon
E. Holloway, Jr., and Vera G. Holloway, his daughter, to
share iu the trust estate, aud may be quickly disposed of.

Neither is entitled to any benefit from the trust fund
during the lifetime of Gideon E. Holloway, Sr. After his
decease, by the plain provisions of the will, Gideon E. Hol-
loway, Jr., and any children of his by marriage subsequent
to the date of the will, stand on equal footing in relation to
the trust estate and have equal right to the income of the
trust fund for their benefit, maintenance and support, sub-
ject only to the discretion of the trustee as to the amount
and time of payment; and the existence of a necessity for
such application of the trust estate.

We advise the Superior Court that Gideon E. Holloway,
Sr., is entitled to be paid nothing by the trustee from the
trust estate until such time as tlie trustee is satisfied that he
has need of the same for his personal support ; that it is the
duty of the trustee to hold the fund, and if not required for
the necessary support of Holloway, Sr., to allow the same to
accumulate during his lifetime, and upon his decease the
trustee may expend so much of the income as he may deem
necessary for the benefit, support and maintenance of Gideon
E. Holloway, Jr., Vei*a G. Holloway, and any other children
of said Holloway, Jr., entitled to the benefit of the trust.

In this opinion the other judges concuiTed.



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DECEMBER, 1889- 219

Union Hardware Co. v. Plume <fe Atwood Mfg. Ck>.



Thb Ukion Hardwabe Company vs. The Plume &
Atwood Manufacturing Company.

New Hayen and Fairfield Cos., Oct. T., 1889. Cabpemteb, Pabdee,
Loom 18, Seymoub and Pbrntice, Js.

A oorporation agreed with the plaintiffs to sell goods of their manufacture
on commission at a price to be fixed by the plain tifFs and to account for
all sales. The goods were received, and sold by the corporation for less
than the price fixed, and the money received for them accounted for to
the plaintiffs. Held, In a suit to recover the balance —

1. That the corporation could not set up in defense that the undertaking

was ultra vires.

2. Tliat the plaintiffs were entitled to recover the balance of the price

agreed, deducting the defendant's commissions on the sum ; also inter-
est from the time the sum became due.

[Argued November 15th— decided December SOth, 1880.]

Action to recover for goods sold by the defendant corpo-
ration for the plaintiffs upon a commission ; brought to the
Superior Court in New Haven County, and tried to the court
before Andrews^ J. Facts found and judgment rendered for
the plaintiffs and appeal by the defendant. The case is suffi-
ciently stated in the opinion.

S. W. Kellogg^ for the appellant.

1. The defendant had no power to make the contract in
question. The powers of a corporation are limited to those
specified in its charter, or in the case of a joint stock corpo-
ration to those specified in its articles of association, with
such as are necessaiy or incidental thereto, and it is not
claimed on the other side that under these articles the de-
fendant had power to undertake the business out of which
the present liability is claimed to grow. Hood v. N. York
^ K Haven R. B. Co., 22 Conn., 1 ; s. c, id., 502 ; Ore-
gonian Railway Co. v. Oregonian Railway ^ Navigation Co.,
20 Am. & Eng. Railway Cases, 624, 528 ; Davis v. Old Col-
ony R. R. Co., 131 Mass., 258 ; Downing v. Mi. Washington



58 219
62 180



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220 DECEMBER, 1889.

Union Hardware Co. v. Plume A Atwood Mfg. .Co.

Road Co.^ 40 N. Hamp., 230 ; Franklin Co. v. Lemston Inst,
for Savings^ 45 Maine, 43 ; Thomas v. Railroad Co,^ 101 U.
S. R., 71 ; Ashbury Railway Carriage Co. v. Ricke^ L. R., 7
H. L. Cas., 663. And the plaintiff was bound to take no-
tice that the defendant had not this power, as its articles of
association were a matter of public record. Pearce v. Madi-
son ^ Indianapolis R. R. Co.^ 21 How., 441. See also 2 Mora-
witz on Corp., §§ 580, 591; Alexander v. Cavldwell^ 83 N.
York, 480.

2. The defendant is not estopped from setting up its want
of power. The plaintiff was not induced in any manner by
the defendant to enter into the contract. It will be taken
to have known from the public records what were the limita-
tions of the defendant's power, and so it was not misled.
Authorities before cited.

3. The court erred in not deducting the commissions fi*om
the amount for which the defendant was adjudged liable.
These were provided for by the contract. It erred also in
charging the defendant with interest. Wells v. Abernethy^
5 Conn., 222; Clark v. Clark, 46 id., 586; 3 Parsons on
Cont., 6th ed., 105, note ; White v. Miller, 78 N. York, 398;
Mansfield v. i\r. York Central R. R. Co., 114 id., 331.

JT. B. Graves, for the appellee.

Prenticb, J. The defendant was a joint stock corpora-
tion whose purposes and powers were by its articles defined
to be as follows : —

" The purpose for which said corporation is formed is the
following, to wit : to manufacture metals of which copper,
spelter or nickel, or like substances, form the whole or parts
thereof, and to manufacture said metals or substances into
articles made wholly or in part therefrom ; to buy, sell, own
and deal in any and all real and personal property necessary
or convenient for the prosecution of said business ; and gen-
erally to do all things incidental to said business and to the
proper management thereof.

For the purposes of its business the defendant maintained



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DECEMBER, 1889. 221



Union Hardware Co. v. Plume <fc Atwood Mfg. Co.

a store in the city of Boston for the sale of its own goods
and other allied articles. The plaintiff was a manufacturer
of skates. In 1877 the plaintiff and defendant entered into
an agreement whereby the defendant became the selling
agent of the plaintiff in Boston. The terms of this agree-
ment were reduced to writing. By its provisions the de-
fendant undertook to handle the plaintiff's product, and the
plaintiff undertook to consign its goods to the defendant to
be sold. The goods were to remain the plaintiff's property
until sold, the selling prices were to be such as the plaintiff
should from time to time fix, and all sales were to be ac-
counted for upon receipt of payment. For its services the
defendant was to receive a commission. The parties acted
under this agreement for several years, and annually settled
their accounts to their mutual satisfaction, the plaintiff often
allowing rebates from the consigned or established price. In
the fall of 1885 the plaintiff, acting under this agreement,
sent to the defendant a consignment of skates for sale at
certain fixed prices appearing in its list. Sharp business com-
petition during the winter induced the defendant, against
express directions of the plaintiff, to cut prices and sell the
skates at a considerable reduction from the established price.
The amount received upon these sales had been accounted
for by the defendant. The complaint sets up these facts,
and seeks to recover the balance due for the goods so sold.

Defense is made upon the ground that the alleged agree-
ment and the defendant's undertaking to sell the skates were
in excess of its corporate powers, and that therefore it is not
bound by the terms of the agreement. In the opinion of the
court it is altogether immaterial whether or not the agree-
ment was ultra vires as claimed. The defendant's undertak-
ing under it was not one prohibited by law. It was at most
only in excess of corporate powers. In pursuance of the
agreement the defendant has received from the plaintiff its
goods and sold them. Having thus received the benefit of
the agreement, the law will not allow it to set up its own
wrong to enable it to escape responsibility. Having received
the property of the plaintiff in pursuance of the agreement



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222 DECEMBER, 1889-

Union Hardware Co. v. Plume A Atwood Mfg. Co.

it will not be sufiPered to appropriate it, and under the plea
of ultra vires defeat recovery therefor. It will so far be held
to the terms of the contract. This principle of law is recog-
nized by all the modern text-writers and by the great cur-
rent of modern decisions.

Wood's Field on Corporations, 855, states the rule as fol-
lows : — " It is evident that by the plainest principles of jus-
tice corporations making contracts in such cases and receiving
the consideration and full benefits of the same should not be
allowed to defeat the obligations made by them therefor, or
at least should not be permitted with impunity to appropri-
ate the property of another received by virtue of such con-
tract, and under the plea of ultra vires defeat any recovery
therefor." See also 2 Morawitz on Corporations, §§ 581, 689 ;
Sedgwick's Stat. & Const. Law, 90 ; Toumship of Fine Orove
V. TalcoU, 19 WaU., 666, 678 ; Railway Co. v. McCarthy, 96
U. S. R., 258, 267 ; Whitney Arms Co. v. Barlow, 63 N. York,
62, 70 ; Oil Creek ^ Allegheny River R. R. Co. v. Penn. Trans^
portation Co,, 88 Penn. St., 160, 166 ; Chicago Building So. v.
Crowell, 65 111., 453, 460 ; State Board of Agriculture v. Citi-
zens^ Street Railway Co., 47 Ind., 407, 411.

This court, in Fidler ^ Wife v. Naugatuck R. R. Co., 21
Conn., 557, clearly recognizes this doctrine.

Objection is made to the allowance of interest by the court
below. The defendant contracted to promptly account for
the proceeds of all sales. The plaintiff has suffered not only
from the non-payment of the price of the goods sold, but
by its detention for several years. Interest was therefore
properiy considered as an element of the plaintiffs damage.

The court below neglected to make allowance to the de-
fendant for its commissions. This oversight should be cor-
rected. These commissions with interest amount to $164.66.

There is error in the judgment below to the amount of
$164.66 in not allowing commissions. Otherwise there is np
error, and the judgment should be affirmed for $2,209.06.

In this opinion the other judges concurred.



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DECEMBER, 1889- 228

Hewitt's Appeal from Probate.



Ebastxts F. Hewitt's Appeal fbom Pbobatb.

New London Co., Oct T., 1889. Andbews, C. J., Cabpenteb, Loomis,
Beabdslet and J. M. Hall, Js.

A testator constituted the residue of his property, which was nearly all
personal, a fund, the income from which was to be divided into as
many parts as he should leave nephews and nieces, or their represen-
tatives, living at his death, and one part paid to each during life; with
a gift over of each share of the principal upon the death of the person
having the life use of it. The testator was domiciled within the pro-
bate district of Ledyard and the probate court of that district assumed
jurisdiction of the estate for the purpose of its settlement. The
executor lived within the probate district of Norwich, and had the per-
sonal property at his place of residence. He had settled his adminis-
tration account, but no distribution or other division of the property had
been made. No trustee was appointed by the will and the executor had
not been appointed trustee by the court. Most of the nephews and
nieces mentioned in the will resided out oi the state and several of them
in the state of Pennsylvania, ul, who had been appointed by a court in
that state a trustee of the property of those residing there, applied to
the probate court of the Norwich district, under Gen. Statutes, § 407,
for an order giving him the custody of the portions of the property of
which his wards had the life use, making the executor a respondent.
Such an order was made and the executor appealed from it to the Su-
perior Court, which court affirmed the order of the probate court. On
an appeal from this judgment by the executor, it was held—

L That the executor's liability on his administration bond if he complied
with the order, and his liability to a suit by ul if he refused to comply
with it, gave him a sufficient interest in the matter to enable him to
appeal from the probate order.

2. That the will intended a single trust, to be managed as such, and the

income from It divided among the beneficiaries, and not as many dif-
ferent trusts as there were separate beneficiaries.

3. That the estate being legally In settlement in the probate court of the

Ledyard district, and not having been divided by distribution or other-
wise, that court alone had jurisdiction over an application by a foreign
trustee for an order for possession of portions of the property.

4. That the fact that the executor resided within the probate district of

Norwich, and had the personal property in his possession there, did
not give the probate court of that district jurisdiction.

5. That it was the duty of the Ledyard probate court to keep the property

within its control until the time came for final distribution.

[Argued October 15th-4ecided October 30th, 1889.]



58 2S3
70 457



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224 DECEMBER, 1889.

Hewitt's Appeal from Probate.

Appeal from a decree of the court of probate for the
district of Norwich, appointing the appellee trustee of cer-
tain personal property, in which persons not resident in the
state had a life interest, and authorizing the transfer of such
property by the appellant, who as executor had the property
in his custody, to the trustee, under Gen. Statutes, § 497 ;
brought to the Superior Court in New London County, and
heard before F. B. Mall^ J. Facts found and probate de-
cree affirmed, and appeal by the original appellant. The
case is fully stated in the opinion.

G. Greene^ Jr.^ and (7. F. Thayer^ for the appellant.

1. The executor has an interest qualifying him to appeal.
Though not named in the will as trustee, yet his trust as
executor required him to protect the rights of the legatees.
The court of probate for fhe Ledyard district might have
appointed a trustee under Gen. Statutes, § 491, but there
was no necessity for it. The executor might properly per-
form, as he did, the duties of a trustee, and for any failure



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