Connecticut. Supreme Court of Errors.

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The finding is that ^Hhe said assignment and transfer
* * ♦ was not made under nor in pursuance of any bankrupt
or insolvent law of the state of New York, and was an exer-
cise by the defendants of their right at common law to
assign and ti-ansfer their property." This is explicit, and
leaves no room for construction. There is absolutely no
ground for saying that it is an insolvency proceeding, and
not an exercise of a common law right. We must therefore
have reference to the distinction between the assignment in
this case and those made in the course of insolvency or bank-
ruptcy proceedings. That distinction is clearly recognized
in Upton v. Hubbard and Paine v. Lester, S7ipra, Also in
Crouse v. Phcenix Ins. Co,, 56 Conn., 176.

That distinction is substantial and real. In Upton v. Hmih
bard the court was asked to give effect to the insolvent law
of Massachusetts in this state ; but the court declined to do
so, deciding in favor of the attaching creditor. Paine v.
Lester turned upon the very distinction now under consid-
eration. Even in that case Park, C. J., thought that the
assignment ought to have been held valid. In Crouse v.
Phoenix Ins. Co. this court gave effect to the insolvency pro-
ceedings in the state of New York so far as it affected a
debt due from the insurance company to a citizen of New
York, mainly on the ground that the company by virtue of
its compliance with the provisions of a law of that state, had
in law become also a citizen of that state, and as such had
been sued there and had been compelled to pay the debt to
the assignee. Surely that case cannot be regarded as an



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FEBRUARY, 1890. 825

Egbert v. Baker.

authority for denying the validity of the assignment in this
case.

By giving effect to a common law conveyance made by
the party we do not import into this state the local statute
law of another state, but simply give effect to a principle of
law of general application in all the states, as we believe ; in
this state as well as in New York. The principle is too
firmly established and too important to be departed from or
shaken. A departure by one state even would introduce
great confusion and seriously affect the commercial interests
of the country.

But we are asked to make an exception to the rule on the
ground that the assignment giving a preference to creditors
contravenes the policy of our insolvent law, which forbids
preferences and seeks to divide the assets ratably among
creditors. In a legal sense it cannot be said that a contract,
made in the state of New York, in strict conformity to the
laws of that state, and by citizens of that or other states,
contravenes the policy of our law. Our statute was not en-
acted for such contracts and takes no cognizance of them.
Such contracts may dispose of property in a manner not al-
lowed by our law ; but that does not concern us ; and is cer-
tainly not a sufficient reason for giving our statute an
extra-territorial jurisdiction, especially in a case between
citizens of other states, the effect of which would be to de-
prive parties of vested rights.

This contract affects neither citizens of this state nor
property in the state. The garnishees have no interest in
this question, and, for the purposes of this case, the debts
owing by them have no situs in this state. Comity certainly
does not require us to avoid this contract, for it is not a case
for the application of that principle. If it was a mere ques-
tion, not of right, but of policy, whether we would allow a
foreign administrator or other officer deriving authority from
foreign laws to sue, as such, in our courts, we might well
exercise a discretion and allow it in proper cases; but when
we are asked to go further and arbitrarily deprive parties of



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826 FEBRUARY, 1890.



Benedict v, Benedict.



rights acquired under valid contracts, we must see stronger
reasons for it than any existing in this case.
There is no error in the judgment appealed from.

In this opinion the other judges concurred.



Frances C. Bekbdict vs. Thomas C. Benedict.

New Haven A Fairfield Cos., Jan. T., 1890. Andrews, C. J., Cabpbn-
TEB, LooMis, ToBBANCB and FsNN, Js.

It is provided by Gen. Statutes, § 2807, that the Superior Court may assign
to any woman divorced by the court, part of the estate of her husband,
not exceeding one third. In a suit by a wife against her husband for
a divorce and for alimony, in which it appeared that the husband^s
property was almost wholly real estate, and the court found that a di-
vision of it was impracticable and not for the interest of either party,
it was held that the court might properly order the payment of the
alimony in money.

[Argued January 22d— decided February 17th, 1890.]

Suit for divorce and alimony ; brought to the Superior
Court in Fairfield County and heard before Phelps^ J. Facts
found and divorce granted, with an order for the payment
in money of a sum fixed as alimony. The defendant ap-
pealed. The case is fully stated in the opinion.

ff. TF. Taylor and F. B. Hungerford^ for the appellant.

S. Tweedy^ for the appellee.

TORBANCB, J. In this case, upon the complaint of the
wife asking for a divorce and alimony, the court granted the
divorce, and adjudged that a certain sum of money should
be paid as alimony.

The reasons of appeal filed in the case contain ten assign-



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FEBRUARY, 1890. 827

Benedict v. Benedict.

ments of error, but before this court the defendant aban-
doned all the assigned errors except that relating to the
award of alimony.

Upon this matter of alimony the court below found as fol-
lows : " That at a very low estimate the defendant's estate is
of the value of f 28,600, of which only about $1,000 is in per-
sonal property, and that the sum of $9,500 is a reasonable
portion thereof to award and assign to the plaintiff as alimony,
and that the nature and condition of the defendant's estate are
such that a division or partition of the real estate is imprac-
ticable and not for the interest of either party."

Upon this state of facts the defendant claimed, as a mat-
ter of law, " that the court should, in accordance with the
provisions of the statute, set out to the plaintiff as alimony
a certain portion of the defendant's real estate." The court
below refused to comply with this claim and adjudged that
the defendant should pay said sum of nine thousand five
hundred dollars as alimony.

The statute refeiTcd to in the defendant's claim reads as
follows — " The Superior Court may assign to any woman so
divorced part of the estate of her late husband, not exceed-
ing one third." Gen. Statutes, § 2807. More than three
quarters of a century ago, the Supreme Court of this state,
in deciding the case of Sanford v. Sartford^ speaking of this
statute through Brainard, J., said: — " This particular sec-
tion has long received a practical construction, by which,
whatever doubts I might have were the statute of recent
date, I now feel myself bound. The Superior Court, when
granting a bill of divorce to the wife, she being the inno-
cent party, has, when the situation of the estate would not
literally admit of an assignment in part, uniformly decreed
the payment of a sum of money. This practical construc-
tion seems to be clearly within the equity of the statute, the
object of which was a reasonable allowance to the innocent
wife out of the estate of an offending and unprincipled hus-
band." Sanford v. Savford, 5 Day, 357.

In Lyon v. Lyon^ 21 Conn., 198, this court, in speaking
of the award of alimonj', said : — " When his property con-



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828 FEBRUARY, 1890.

Benedict v. Benedict.

sists of real or ordinary personal estate which can be speci-
fically divided, the court will, itself, or by a committee
appointed for that purpose, apart to her such portion of his
property as is assigned to her by the decree. When it con-
sists of property which is not capable of such a division,
such as money in his hands, the court determines the sum
which the wife shall receive and directs the husband to pay
it to her within such time as it shall deem reasonable."

In the case at bar the court below expressly finds from
the nature and condition of the defendant's estate a division
or partition of the real estate is impracticable and against
the interest of both parties. This is equivalent to a find-
ing that the estate of the* defendant is incapable of a specific
■^ division or assignment. Under such a state of facts the
practice of awarding alimony in money has received the ap-
proval of this court in the cases of Sanford v. Sanford and
Lyon V. Lyon^ above cited, and, so far as we know, has the
sanction of a constant, uniform and immemorial usage ; and
although practice cannot alter the law, "yet where it has
been long continued and unquestioned it affords high evi-
dence of what the law is." Huntington v. Birchy 12 Conn.,
149.

In view then of the facts found and of the construction
heretofore put upon the statute in question, we think the
Superior Court was not legally bound to do that which it
had found to be impracticable, and which if done would
have been against the interest of both the plaintiff and the
defendant.

There is no error in the judgment of the court below.

In this opinion the other judges concurred.



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FEBRUARY, 1890. 829

Lepard v. Skinner.



Frederick P. Lepard, Administrator, vs. Lewis B. [68
Skinner and others.

Hartford Dist., Jan, T., 1890. Andbrws, C. J., Carpenteb, Loomis,
ToBBANCB and Thateb, Js..

A testator gave the ose of all his real and personal estate to M for life and
after her death to two nephews for their lives, fiy a prior clause he
had given pecuniary legacies to two women, one an aged family ser-
vant, and by later clauses he gave his dwelling house and furniture to
two female relatives and a pecuniary legacy to the children of one of
the legatees. Certain charitable bequests were then made, which were
in terms made payable after the death of the survivor of the two
nephews. Held that, taking the whole will together, it must be re-
garded as the intention of the testator that all the legacies not in
terms postponed till the termination of the life estates should vest
npon his death, and that the life use given to M and the nephews was
only of the property left after those legacies were paid.

[Argued January 14th— decided February 17th, 1890.]

Suit for the construction of a will; brought to the Su-
perior Court in Hartford County, and reservedfor the advice
of this court. The case is fully stated in the opinion.

C. M. Joslyn^ for the estate of Maiy A. Smith.

W, F. Henney^ for Ann A. Mason, Ann E., Henry E. and
Mary Batchelor.

E, B. Bennett^ for Bessie and Martha Skinner.

fl*. E. Taintor^ for Lewis B. and John T. Skinner.

Carpenter, J. This is a suit for the construction of the
will of Thomas Skinner. The case is reserved for the ad-
vice of this court.

The second and seventh clauses of the will give general
pecuniary legacies, unconditionally and without limitation,
to Ann E. Batchelor, Ann A. Mason, and to the two children



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830 FEBRUARY, 1890.

Lepard o. Skinner.

of Ann E. Batchelor. The sixth clause gives the dwelling
house and the furniture contained therein to Bessie Skinner
and Martha Skinner. The third clause gives to Mary A.
Smith a life estate in all the testator's property. The fourth
clause gives the same property to Lewis B. and John T.
Skinner, and the survivor of them, for life, after the decease
of Mary A. Smith. After the decease of the survivor sev-
eral legacies are given to charity in the fifth clause, and the
eighth clause disposes of the residue. Mary A. Smith dieH
a few days after the death of the testator.
The case submits four questions : —

1. Did Mary A. Smith take an absolute estate in the fur-
niture ?

2. Are the legacies to Ann E. Bachelor and Ann A. Mason
payable presently pr after the termination of the life estates?

8. Are the life-tenants entitled to the use of the house
and furniture for life ?

4. Are they entitled to the incora.e for life of the legacies
given to the children of Ann E. Batchelor ?

These questions may be embraced in one : — Are the pe-
cuniary legacies, other than those given to charity, which
are in terms payable at the termination of the life estates,
payable now, or does the will postpone their payment until
the death of Lewis B. and John T. Skinner? For the gift
of the house and furniture will follow the pecuniary leg-
acies ; if the latter vested on the death of the testator, so
did the former. The same rule must be applied to all. We
think they all vested when the will took effect. ,

It is a general rule that specific and pecuniary legacies
vest at the death of the testator, and are payable at or be-
fore the close of the settlement of the estate. The rule
however does not apply when it appears that the testator
had a contrary intention. Jacoh% v. Bradley^ 86 Conn., 365;
Plait V. Platt^ 42 Conn., 830. We discover nothing in this
will to indicate that the legacies named in the second, sixth
and seventh clauses of the will are to be postponed until
the death of the life-tenants. On the contraiy there are
several circumstances which indicate that the testator's in-



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FEBRUARY, 1890. 831

Lepard v. Skinner.

tention was in harmony with the general rule. The estate
amounts to over f 34,000. The general legacies amount to
$4,700, and the furniture to about $600. The case does not
show the value of the dwelling bouse. That however is not
material, as in any event, after paying all the legacies now
under consideration, and delivering the dwelling house to
the devisees, there still remains some $17,000 of pei'sonal
property, apparently sufficient for the support of Mary A.
Smith had she lived, especially as a part or all of the princi-
pal could have been used for that purpose if necessary.

The legacies given to charitable societies in the fifth
clause of the will are in terms payable after the termination
of the life estates. The law confines the limitation to those
legacies and will not extend it by implication to other
clauses. Jacobs v. Bradley^ supra. The testator had the
subject in his mind, and made some of the legacies of the
same class payable on the decease of the tenants for life,
leaving others to the operation of the general rule. More-
over, the testator having used very different language in
the bequests to charitable objects, the inference is very
strong that he did not intend that they should stand upon
the same footing with the others.

One of the legatees, Ann Mason, was a servant for many
years in the family, and was about seventy years old when
the will was made. The life-tenants were then about fifty.
We cannot suppose that the testator intended that her leg-
acy, $200, should be postponed until the death of the life-
tenants ; but her legacy is postponed if any are. There is
no room for a distinction.

While therefore the language of the will creating the life
estate is general — "all my real and personal estate" — ^yet
from the whole will it is reasonably certain that he intended
only what should remain after the payment of these legacies.

This view of the case disposes of the first question ; for
Mary A. Smith took no interest in the furniture, not even a
life estate.

The Superior Court is advised to decree accordingly.

In this opinion the other judges concurred.

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882 FEBRUARY, 1890.



60 601



Leake v. Watson.



RiCHABD B. Leake, Trustee, v%. Thomas L. Watson

AND OTHERS.

N^ew Haven A Fairfield Cos., Oct. T., 1889. Andbews, C^ J., Oabpsn-
TBB, Pardee, Loomis and J. M. Hall, Js.

A trust fund, consisting of railroad stocks and other securities, was held by
a testamentary trustee for the benefit of N^ a daughter of the testator,
the income to be paid to her and the remainder to go to her heirs ; the
will proyiding that she might, if she deemed it necessary, from time to
time receive portions of the principal, not to exceed $1000 a year, nor
to exceed in all half of the principal. The trustee and N used the
trust fund in stock speculations, the defendants acting as their brokers
in the matter, and receiving stocks from them for the purpose, charg-
ing a commission which they shared with a New York firm of brokers,
who were members of the stock exchange, and through whom the pur-
chases and sales were made. The result was a loss of the trust estate.
In a suit brought by a trustee for the children of N^ to recover of the
defendants the value of the trust property which they had received
and disposed of, it was held —

1. That so far as the defendants sold the stock as mere agents, in good

faith, without knowledge, actual or constructive, that other persons
interested in the trust were being injured, or that the sale was not for
a legitimate object, and had fully accounted, they were not liable.
Otherwise if they knew, or were in the circumstances chargeable with
knowledge, that the stocks were being sold in violation of the trnsL

2. That if the trustee sold the stocks for the purpose of using the proceeds

in stock speculations or of permitting ^ so to use them, and the de-
fendants purchased them knowing the purpose, they participated in
the breach of trust, and were liable for the stocks received by them.
And in the same way were liable if they received the stocks or security
and subsequently sold them, using the avails to make good losses on
other stocks held by them on margins for the trustee and N,

3. That the defendants were bound to inquire as to the ownership of the

property, and as the will, which gave to N her interest in it, also gave
the remainder to her heirs, and could have been found on the records
of the probate court, they were chargeable with knowledge of the
rights of the heirs.

4. That it was of no consequence, upon the question of notice to the de-

fendants, that there was a doubt as to who would take the remainder,
and as to whether the gift over was valid; it being enough that there
was a remainder, and that there were possible parties besides N who
had an interest in the property.

5. That it did not affect the case that the court of probate had distributed

the property to *' trustees for i^,*' such distribution being In teons



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FEBRUARY, 1890. 333

Leake v. Watson.

made under the will, which gave N only a life estate, and the court
making no distribution of the remainder.

6, That any property which had been bought and added to the trust fund
by a former trustee in the place of trust property sold, and which came
into the defendants' hands, stood upon the same ground with original
trust property.

Where property is given to a trustee for a certain person for life, with re-
mainder over, the trustee is charged with the duty of safely keeping
the property until it is delivered to the remainder-men. But the re-
mainder-men in such a case would not be strictly beneficiaries under
the trust.

Where the court of probate is acting upon the acceptance of the resignation
of such a trustee and his discharge from the trust, it is not necessary
that notice should t>e given to the remainder-men as parties in interest.

[Argued October 29th, 1889— decided February 7th, 1890.]

Action by the plaintiff as trustee of cei-tain estate for
Georgiana Nichols, under the will of her father Charles
Bulkley, against the defendants, to recover the value of
8undr\' stocks and bonds, belonging to the trust estate,
which had been received and sold by the defendants as bro-
kers, with alleged knowledge that they were being disposed
of in violation of the trust; brought to the Supeiior Court
in Fairfield County. The defendants in their answer averred
their ignorance of the existence of the will in question ; that
the stocks and bonds were received by the defendant Wat-
son as a broker in the regular course of business from the
said Georgiana and Elizabeth Bulkley, then trustee, with
orders to sell the same in the market in New York city, and
that he so sold them in good faith and accounted to them
for the proceeds before he had any notice of the plaintiff^s
claim. The case was heard before Fenn^ Ji, who made the
following finding of facts.

Charles Bulkley of Fairfield in this state died in 1875,
leaving a will, which was duly probated, and which, after
providing for his widow, proceeded as follows : —

*' Fourth. All the rest, residue and remainder of my estate,
real and personal, I give, devise and bequeath unto trustees,
as hereinafter named, for the uses and purposes hereinafter
set forth, as follows : —

"-One fifth to be held in trust ; and the income, use, inter-



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884 FEBRUARY, 1890.

Leake v, Watson.

est and improvement thereof to be paid over annually, or
in more frequent installments if deemed expedient and con-
venient by the trustees, unto and for the use and benefit of
my daughter, Mary Elizabeth, wife of Isaac Jennings ; the
remainder to go to her heirs forever; provided that said
Mary Elizabeth may, if she shall deem it expedient and ne-
cessary, from time to time take and receive portions of tlie
principal, not exceeding in all one-half of such principal, and
not to exceed the sum of one thousand dollars in any one
year ; such portion of the principal to be paid over by the
trustees upon notice in writing so to do, and the receipt of
said Mary Elizabeth to be a suflBcient voucher to the trus-
tees in the premises. Three other parts, of one-fifth each,
to be held in trust in the same manner as aforesaid, with
the same privilege of receiving portions of the principal, for
the use and benefit respectively of my other daughtere,
Elizabeth Whitney, wife of Rev. Frederick S. Hyde, Geor-
giana, wife of William B. Nichols, and my aforementioned
daughter Catharine, with remainder to their heirs forever."

The remaining fifth was given to trustees for the benefit
of the children of a deceased son. The will appointed
Elizabeth Bulkley, the wife of the testator, and Oliver
Bulkley, his nephew, executors and tiTistees, with a direc-
tion that no bond should be required of them.

The property was afterwards on the 1st day of February,
1876, distributed by order of the probate court, the distri-
bution commencing as follows :—'* Estate of Charles Bulk-
ley. The subscribers, distributors on said estate, having
been legally sworn, have set out and distributed the same
according to la^y and to the will of the said deceased, as
follows." The distribution to Mrs. Nichols was headed as
follows: — "We set to Elizabeth Bulkley and Oliver Bulk-
ley, trustees for Georgiana Nichols " — and then followed a
list of stocks and bonds, amounting to $44,981.81. All the
property thus set out to trustees for Mi-s. Nichols was re-
ceived and taken into possession by Oliver Bulkley, one of
the trustees, being received by him as trustee from himself
as executor. On the 21st day of August, 1885, Mr. Bulk-



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FEBRUARY, 1890, 335

Leake v. Watson.

ley rendered his account as trustee to the court of probate,
which was accepted, and he was on the same day, upon his
application previously made, discharged from the trust. By
his account thus rendered it appeared that $17,480.58 in
Yalue of the trust property then in his hands was made up
of new investments since the commencement of the trust,
the rest being the same property that was described in the
distribution. New certificates of the stocks had been taken
in 1876 in the names of the two trustees. Upon his resig-
nation as trustee Mr. Bulkley surrendered the certificates
(with one exception) and procured new ones issued in the
name of " Elizabeth Bulkley, trustee for Georgiana Nichols,"
which were delivered by him to Mrs. Bulkley.

Mr. Bulkley, while acting as trustee, made ten annual
payments of $1,000 each, commencing March 9th, 1876, end-
ing January 30th, 1885, to Mrs. Nichols, from the principal
of the fund, designed by him and accepted by her as pay-
ments of principal under the provisions of the will in refer-
ence to the $1,000 per year.

Georgiana Nichols was born in 1838, married in 1857,
became single again in 1877, and has since so remained.
She has three daughters, the youngest born in 1864, now
the wife of Richard P. Leake, the plaintiff trustee, and one
son aged fifteen. The defendant Watson resides in Bridge-



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