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of duty would have been liable on his bond as executor.
Schouler on Exrs., §§ 238-241 ; Sanford v. Gilman, 44 Conn.,
461. He is by his bond to " well and truly administer the
estate according to law," and the will is the law of the es-
tate. Pease v. Phelps^ 10 Conn., 62; Moore v. Holmes^
32 id., 553 ; Rhodes v. Seymour^ 36 id., 1 ; Sanford v. 6rt7-
man^ supra. The mere settlement of his administration
account does not exhaust his powers. Davis v. Weed^ 44
Conn., 569. Under Gen. Statutes, § 559, it was his duty to
hold this property until a bond was given by the life tenant
in our probate court. Sanford v. Oilman^ supra. The
case of Security Co. v. ffardenburyh^ 53 Conn., 169, shows
that as late as 1885, a non-resident life tenant could not get
possession of the property in which the life estate existed
without giving bonds in this state. The only statute sub-
sequent to this, under which it is claimed that the life tenant
can remove the property without such bond, is Gen. Stat-
utes, § 497. As such removal was contrary to the intention
of the testator, it was the executor's duty to appeal from



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DECEMBER, 1889. 225

Hewitt's Appeal from Probate.

the decree. If he had paid over the trust funds to the for-
eign trustee, under the ofder of the probate court, and
such funds had not been forthcoming for the executory de-
visees on the death of any life tenant childless, the order of
the court would have been no protection to hira if it should be
the fact that this statute gives the probate court no jurisdic-
tion. Section 445 protects executors paying under the order
of a probate court of competent jurisdiction only. The
executor was under no obligation to risk being obliged to
pay a second time.

2. The probate court had no jurisdiction to make the de-
cree. The Norwich court is not " the court of probate in
which the principal part of the estate in this state is." Pro-
perty can only be said to be in a court when it has exercised
jurisdiction over it, or at least has the legal right to do so.
The testator died domiciled in the district of Ledyard, in
which district the probate court was and is exercising juris-
diction over this property. Until the application was made
in this matter to the probate court for the Norwich district,
that court had never exercised or claimed any jurisdiction
over any portion of the estate. The different language
of this statute from that of section 467 is noticeable. The
former says — " the court of probate in which the principal
part of such estate is;" the latter — "the court of probate
of the dustrict in which the principal part of such estate is."
Even if it be held that the language of the former means
the court of the district in which the property is, the court
for t^e district of Ledyard should have been applied to.
The real property was all in Ledyard, and the personalty,
being in charge of the executor, was still, in the eye of the
law, in the district of the testator's domicile ; that is in the
district of Ledyard.

D. Q-. Perkins^ for the appellee.

1. The character of the proceedings. The legislative
power of the state has provided, (Gen. Statutes, § 497,) as
an act of interstate comity, that a certain class of non-
resident cestuis que trusty whose trust property is located in
Vol. liVm.— 15



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226 DECEMBER, 1889.

Hewitt's Appeal from Probate.

this state, may procure the appointmeDt of their own trus-
tee, under the control of their own local courts, and that
the trustee so appointed, acting for thera, may apply to the
court of probate in this state "in which the principal part
of the property is," for the possession of the property ; and
that the court, upon proof of his proper appointment, shall
appoint him such trustee and authorize the person holding
the property to deliver it to him. Full power is given him
to demand, sue for, recover and remove the property from
the state. This is such an application, and an executor
holding the trust property ready for distribution according
to the will, to whom notice of the application was given,
saw fit to appear ; and when the application was granted,
took the present appeal to the Superior Court as a party
aggrieved.

2. The appellant has no legal right which is in any way
affected by the decree appointing a tinistee, and therefore
is not aggrieved within the meaning of the statute, and
has no right of appeal. To be "aggrieved" is to have a
legal right the infringement of which by the decree com-
plained of will cause pecuniary injury. Norton's Appeal
from Probate^ 46 Conn., 527 ; DickersorCs Appeal from Pro-
bate^ 55 id., 223. The appellant seeks to justify his appeal
on three grounds : — First. Because he is the person to whom
the court ordered notice to be given under the statute. The
object of the statute is simply to give notice to the person
having the property in his possession. His only interest is
to deliver the property to a legally appointed trustee. The
decree authorizes, but does not compel him to deliver it.
He can await a suit, and test the right in that. The only
person interested in the property itself is the cestui que trusty
who has procured the appointment of the trustee who makes
the application, acting in his behalf. The other cestuis que
trust have no interest, because their property is in no way
affected, except it be, as claimed, by the division of the pro-
perty, which is the fault of the law and cannot be the sub-
ject of complaint. If so, it would give them and not the
executor a right of appeal. Second. Because he holds



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DECEMBER, 1889- 227

Hewitt's Appeal from Probate.

the property as trustee. This is false in fact. The finding
expressly declares that he is not trustee, either by the will
or by appointment of the probate court. He cannot be cre-
ated a trustee by implication from certain acts of the pro-
bate court in ordering him as executor to distribute the
income of the fund. He acted solely as executor, and is
subject to the court only in that capacity. Courts of pro-
bate can appoint trustees only as provided in Gen. Statutes,
§ 491. And he must give a bond as trustee, which has not
been done here. He is liable solely as executor on his bond,
and must be held to have acted as such. His sureties on
his bond as executor would not be liable for his acts as trus-
tee if he had been appointed. Sanford v. Oilman^ 44 Conn.^
461. Third. Because he holds the property as executor.
So far us his duty as executor is concerned the estate is set-
tled, all charges paid, his final account rendered, and this
property shown to be in his hands for distribution under
the will x)r by law. The Ledyard probate court could have
appointed a trustee under section 491, and the executor
would have been bound to deliver the property to him.
Could he have appealed from the appointment of such a
trustee ? The answer is plain ; and yet he has as executor
no other interest in the appointment of this foreign trustee.
Each is the appointment of a trustee as authorized by stat-
ute ; they differ only in details ; his rights and duties as
executor are the same in one case as in the other. The act
of the probate court simply *' appoints the trustee and au-
thorizes him to deliver the property." It does not compel
him. If he delivers the property he is protected under Gen.
Statutes, § 115. The court of probate by statute has juris-
diction of the subject matter. The executor cannot be held
to inquire whether, through defect in the evidence, the court
erred in exercising jurisdiction in the particular case. But
if the court had no jurisdiction the whole proceeding is void,
and the executor should not be allowed to appeal from a
court which had no jurisdiction to another court necessarily
without jurisdiction, simply to see the case erased from
the docket. OlmiUad'*8 Appeal from Probate, 43 Conn.,



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228 DECEMBER, 1889.

Hewitt's Appeal from Probate.

110. Whether valid or void the executor is bound in no
way by the appointment of the trustee, and can await, if he
chooses, the action of the trustee to recover tha property,
and thus determine the validity of the court's action and
protect himself. He ought not to have an appeal and also
defend an action. If he appeals, he will charge the expense
to the entire property of the estate of John Newton, which
has no possible interest in this appeal. The conclusion is,
that he is maintaining an appeal and promoting litigation in a
matter in the decision of which he has no pecuniary inter-
est. The appeal should be dismissed.

8. The appellant claims, under the statute, that the Nor-
wich probate court had no jurisdiction, because the estate
was not in settlement in that court. It is conceded that
the principal part of the estate is in the district of Norwich,
and that is all that the statute requires. The intention of
the legislature is plain ; the word " estate " is equivalent to
" property," and in referring to its location it is apparent
that the district is meant, although the words " of the dis-
trict " do not occur after the word " probate." It surely
cannot mean, as claimed, " the court in which the estate is
in settlement;" if so, why the expression "the principal
part of such estate," for the principal part cannot very well
be in settlement in one court of probate and the lesser part
in another. The apparent and reasonable construction of
the language is that the 9itu8 of the property in the district
is intended.

4. The facts bring the case within the statute. Five eeih
tuts que trust are children and three are grandchildren of the
sisters named in the will ; all reside in Pennsylvania, and
all have children who reside there. Under the will the
eight cestuis que trust are the owners of a life estate, six in
one fourteenth each, and two in one twenty-eighth each of
the trust estate. To own is to have a legal right to the ex-
clusive possession. Ownership here refers to a life use or
income during life. Upon the death of the life tenants
such share is given to the children of such life tenant abso-
lutely. The children have a vested interest in the remainder.



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DECEMBER, 1889. 229

Hewitt's Appeal from Probate.

Under the statute children must " be entitled " to the re-
mainder on the termioation of the life estate ; to be " en-
titled *' is to have a legal right or claim. These children
have such right or claim to the remainder, subject to be
defeated, as are the rights of us all to property, only by
death. They come within the meaning of the statute then.
It is said the trust is entire and indivisible. The testator
clearly contemplates division ; " the residue shall be divided
into as many equal parts, etc. — and one of said shares set
apart for the use of each, and the income of each of said
shares paid over," etc. There is nothing in the will to
prohibit division, and the statute clearly grants the right.
The eestui que trust who applies is alone interested in the
management of his own fund, and if division results in
any increased expense to the remaining cestuis que trmt
it is. due to the machinery provided by the law for the ful-
filment of the trust ; it is a matter over which the testator
had no controL This is a proceeding to have a trustee ap-
pointed and not to have property delivered to the cestui que
trust. The court, before the statute of 1887, could appoint
a non-resident a trustee. The statute simply authorizes the
court to confirm the appointment of a non-resident appointed
by a court of another state, and makes the record evidence
of his appointment and qualifications. The testator in his
will, and the probate court of Ledyard under the will, made
no appointment of a trustee, so that there is no constitu-
tional question on the ground that the appointment of this
trustee interferes with the vested rights of a trustee already
appointed.

Andrews, C. J. Miller S. Allen preferred his applica-
tion to the probate court in the district of Norwich on the
28d day of June, 1887. He described himself to be of Mont-
rose, Susquehanna county and state of Pennsylvania, alleged
that he was the trustee duly appointed by the proper court
in that state for certain persons named in the application,
and asked that a portion of the estate of John J. Newton be
transferred to him as such trustee. Erastus Hewitt, the



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230 DECEMBER, 1889.

Hewitt's Appeal from Probate.

executor of the will of Mr. Newton, was made a respondent
to the application. The court of probate in the Norwich ^
district made an order authoiizitig such a transfer to be
made. From that order Mr. Hewitt appealed to the Supe-
rior Court for New London county where the order of the
probate court was affirmed. Mr. Hewitt now appeals to this
court.

At the outset it is objected that Mr. Hewitt has no such
interest in the matter as authorized him to take any appeal
from the order of the probate court. We think he was so
aflfected by the decree appealed from that he had good right
to take the appeal. On the one hand the liability on his ad-
ministration bond to which he might be subjected if he com-
plied with the order, and on the other hand the liability to
a suit by the trustee Allen if he refused to comply with it,
is an interest such that it is very clear he might be aggrieved*

The finding shows that John J. Newton died on the 9th
day of September, 1883, resident and domiciled in the town
and probate district of Ledyard. He left a will the thii*d
and fourth paragraphs of which are as follows :

" Third, I give, devise and bequeath the use and income
of all the rest and residue of my estate to the children of my
two deceased sisters, Sally Smith, (who was the wife of La-
tham A. Smith), and Mary L. Hempstead, (who was the wife
of Gurdon Hempstead), and in case any child of either of
my said sisters has died leaving children, the portion of said
income which would go to such child of my sisters shall be
paid over to his or her children ; and said residue shall be
divided into as many equal parts as there shall be of my said
nephews and nieces, counting those who shall be living at
my decease and those who shall have died leaving children,
and one of said shares set apart for the use of each of said
nephews and nieces living and for the use of the representa-
tives of each of said nephews and nieces who shall have died
as aforesaid leaving children, and the income of each of said
shares paid over to the persons entitled thereto during life.

^^ Fourth. Upon the death of the nephew or niece or grand-
nephews and gi-and-nieces entitled to any of the shares afore-



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DECEMBER, 1889. 231

Hewitt's Appeal from Probate.

said, such share shall be delivered and paid over, and I give
and devise and bequeath the same, to the children of such
nephew or niece, grand-nephew or grand-niece, share and
share alike, and in case there be no such children it shall be
divided among the other nephews and nieces, grand-nephews
and grand-nieces in proportion to their respective shares,
and the children of such nephews and nieces, grand-nephews
and grand-nieces, where any share shall have been distrib-
uted to such children."

The will was duly proved and approved in the probate
court in the district of Ledyard. Erastus Hewitt of Preston
was named therein as executor. He duly qualified as such
and proceeded in the settlement of the estate. All the
known debts are paid, the administration account has been
settled, and the estate is ready for distribution as soon as by
the terms of the wiU it can properly be done. The property
of the estate consists mainly of personalty. No trustee was
named in the will, nor has one been appointed by the pro-
bate court, to hold such property during the continuance of
the life estates therein created by the will ; nor was there
any direction in the will that any life legatee should have
the possession of it. Mr. Hewitt has annually paid over the
income of the property to the beneficiaries under the will in
accordance with the order of the court of probate in the
district of Ledyard.

Sally Smith, Mrs. Newton*s sister, mentioned in the will,
had ten children. Mary L. Hempsted, the other sister, had
five children. The persons for whom Miller S. Allen brought
his application are a part of the children of said Sally Smith.
They reside in the state of Pennsylvania. It does not ap-
pear that all of them have children ; and it does appear that
some of the children of one or more of them reside in states
other than Pennsylvania. None of the children of Mrs.
Hempsted reside in that state* Three of the children of
Sally Smith have died since the death of Mr. Newton ; two
of them leaving children and one leaving no child.

The town of Preston, where Mr. Hewitt resides, is in the
probate district of Norwich. The personal property belong



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232 DECEMBER, 1889.

Hewitt's Appeal from Probate.

ing to the estate is in his custody and possession, except so
far as it has been paid over on orders of the court of probate.
' In the settlement of a solvent testate estate the will is
the law, and so long as any part of the property of such an
estate remains in the estate, (M an e%t(xte^ unsevered by a dis-
tribution or otherwise, no court of probate other than the
one " having cognizance of the will " can make any lawful
order or decree concerning its custody or disposition. Nor
can that court of probate make any order concerning the
property that is not according to the provisions of the will.

An examination of the will of Mr. Newton shows that he
intended the residue of his estate to be a fund, the income
of which should be divided into as many parts as he should
have nephews and nieces, or their representatives, (children
of his sisters who are named,) living at his death, and that
one of these parts should be paid to each of these nephews
and nieces or their representatives, during their lives; and
that the residue itself, the piincipal from which the income
was derived, should be divided into as many parts as there
should be nephews and nieces of his who at their own death
should leave surviving children. The number of the per-
sons to whom the income is to be paid, and so the number
of parts into which the income was to be divided, was fixed
at the death of Mr. Newton. But the number of parts into
which the residue itself is to be divided cannot be certainly
known until the death of the last life legatee. One of his
nieces has already died without children ; others may die
leaving no child ; and as it may so happen that the life leg-
atee who shall live the longest may leave no surviving child,
it cannot, until that event happens, be known how many
persons there will be who are entitled to a distributive
share in the principal of the residue. Nor can it until that
time be known with certainty who the distributees are. And
when distribution is to be made the persons who are entitled
to take, as well as the share which each is entitled to re-
ceive, can only be ascertained by the court of probate in
the district of Ledyard, for the reason that that court onlj
has cognizance of the will.



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DECEMBER, 1889. 233

Hewitt's Appeal from Probate.

Till the time for distribution comes it is necessary that
the whole residue be kept within the control «f that court,
to the end that it may then be distributed in a proper
manner and to the rightful persons, and so that it may be
distributed as a single fund, or, if there should be partial
distributions, that these may be made as parts of one entire
fund.

These considerations show clearly that the will contem-
plates but one trust for the entire residue of the estate, and
nut as many different trusts as there were nephews and
nieces ; and that the residue itself is not to be divided dur-
ing the continuance of any life estate, any further than may
be necessary to ascertain the portion of the income to be
paid to each life legatee.

The application was claimed to be brought pursuant to
section 497 of the General Statutes, and it was made to the
probate court in the district of Norwich, upon the averment
that the property was principally in that probate district.
The facts, however, show that the property was in the district
of Norwich in no other way than that it was and is in the
custody of the executor, Mr. Hewitt, who resides in that
district. The estate of John J. Newton being in settlement
in the court of probate in the district of Ledyard, its legal
situs is in that district. The accidental circumstance that
the executor resides in the district of Norwich and that the
nominal location of the property is there, cannot operate to
give the probate court in the latter district any jurisdiction
over it. The title which Mr. Hewitt has to the personal
property of his testator does not make it his property in any
such sense as to impress it with the situs of his residence.
It was decided two hundred years ago in Cole v. Knight^ 3
Mod., 278, that *' when an executor hath goods of his testator
and also other goods of his own, and then grants omnia bona
tua^ the goods which he hath as executor do not pass because
they are not boTia 9ua^^^ and such has been the law ever since.
Farmer^ B ^ Mechanic's Bank v. Brewer^ 27 Conn., 601. It
follows that the decree appealed from is wholly void for the
reason that the court of probate in Norwich had no jurisdic-



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284 DECEMBER, 1889.

Farrel v. Town of Derby.

tion over any part of the property belongiDg to the estate of
Mr. Newton.

And further ; it is quite difiBcult to see how such an order
as was made in this case could be sustained, even if it had
been made by the probate court in Ledyard. It undertakes
to divide the residue of the estate during the continuance of
the life interests therein in a way altogether inadmissible.
We have already shown that the residue constitutes but one
trust fuud instead of a number of trust funds. Obviously
this residue is a single fund or it must be divided into as$
many trust funds as there were nephews and nieces. It
cannot be partly one and partly the other. No argument
whatever can be made to show that this residue, if to be
divided at all, can be divided into any less number of parts
that there are life legatees. No number of these legatees
greater than one and less than all can unite and have it di-
vided in any other way. To do so would be to disregard
what seems to be the plain intent of the will.

There is error in the judgment appealed from and it is re-
versed.

In this opinion the other judges concurred.



Franklin Farrel and others vs. The Town of
Derby and others.

New Haven & Fairfield Cos., Oct T., 1889. Andrews, C. J., Cabpkit-
TEB, LooHis, J. M. Hall and Prentice, Js.

A town has power to appear before the General Assembly and oppose the
granting of a petition for a division of its territory, and may employ
l^al counsel and incur other reasonable expenses for the purpose.

And the selectmen have power to act in the matter where the town has not
otherwise taken action.

[Argued October 24th— decided December 30th, 1889.1
SuJT for an injunction, brought to the Superior Court in



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DECEMBER, 1889. 285

Farrel t. Town of Derby.

New Haven County. The allegations of the complaint
were as follows : —

"1st. The plain tiflPs are residents and taxpayers of the
town of Derby.— 2d. On the 30th day of November, 1888,
the plaintiffs, together with many others, brought their pe-
tition to the General Assembly of this state, at its Janu-
ary session, 1889, and a resolution was introduced into
said Assembly, praying that the portion of said town of
Derby known as the borough of Ansonia, together with out-
lying districts, as more fully appears by said petition and
resolution, be set off from said town of Derby, and a new
town constituted thereof. — 3d. Said petition and resolu-
tion are now pending before the General Assembly. — 4th.
Of the defendants, Joel M. Wheeler, Sidney E. Gesner and
Erwin W. Webster are selectmen, and Chas. E. Clark treas-
urer of said town of Derby. — 5th. The defendants have
already wrongfully and illegally paid money from the treas-
ury of said town, and threaten and intend to wrongfully and
illegally pay additional sums of money from said treasury,



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