be severed, and effect given to the testator's intention until the death of one of the beneficiaries, when it would terminate, and the trust property be divided among those entitled under the will to receive it, who would then take as owners in fee simple. 6. A testator's general plan, as evidenced by the surrounding circumstances and his will as a whole, was to provide impartially for his six children and the children of a deceased child, having due regard for special considerations affecting the needs of any one; and, after making specific devises and bequests to different children, he created a trust in one clause of his will to collect the income of a certain part of his estate, and pay it in stated proportions to his six children. The concluding clause of the paragraph creating the trust provided for its final termination, and declared that at a certain time the trust should be at an end, and the trustee should convey the principal of the trust estate to those entitled to the income in the several proportions in which they were entitled to the same, and concluded, "and in such conveyance give and bequeath said trust estate so held to said several parties, their heirs and assigns forever." Held, that testator's intention was to give to his children equitable remainders or cross-remainders in fee of specified undivided portions of the trust property, which should vest immediately on his decease, and those possessed of the beneficial estate would forthwith become entitled to the legal, and the concluding words of the paragraph could not operate to give the testator's language any other intent. 7. Under Bankr. Law July 1, 1898, c. 541, § 70a, 30 Stat. 565 [U. S. Comp. St. 1901. p. 3451], providing that the trustee of a bankrupt shall be vested with title to all property which the bankrupt might have conveyed, or which might have been sold under process against him, a remainder interest held by a bankrupt, and to vest on the termination of a trust estate, passed to the trustee in bankruptcy. 8. Beneficial interests in a trust created by will, which are left wholly unrestrained and under the control of the beneficiaries, are alienable and subject to attachment and execution, and, therefore, under Bankr. Act July 1, 1898, c. 541, § 70a, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451], passed to the trustee in bankruptcy of such beneficiaries. Case Reserved from Superior Court, New Haven County; Milton A. Shumway, Judge. Suit for the construction of the will of Lyman L. Loomer by Andrew F. Loomer against Martha A. Loomer and others. Reservation from the superior court. March 18, 1892, Lyman L. Loomer, of Derby, died, leaving a last will dated May 18, 1891, which has been admitted to probate. He left surviving him six children, whose ages ranged from 44 to 67 years, all of whom still survive. One daughter predeceased the testator, leaving two children. Two of said surviving children, to wit, Martha and Lucy, are unmarried. Lyman has been married inore than 20 years, but is childless. The other three have been married many years, and all have children who have passed their majority. March 10, 1902, Lyman and Andrew were adjudicated bankrupts in the United States District Court of Connecticut; and on March 22, 1902, the defendant Birdseye was appointed trustee of their assets, and later qualified. February 19, 1903, said trustee in bankruptcy, by order of court, and against the objections of said bankrupts, sold and conveyed their interests in the trust estate created under the provisions of paragraph 7 of the will of their father to the defendant Hubbell. The first five paragraphs of the will contain absolute gifts to each of the children, save Lowell. The sixth contains a gift of two houses and certain lands in trust for Lowell and his wife and the survivor of them, for life, and the remainder over to their children. The seventh paragraph, which gives rise to the present controversy, is as follows: "I give, bequeath, and devise to my son, Andrew F. Loomer, all my lands, buildings, and tenements lying in the borough of Birmingham on the southerly side of Main or Second street: to have and to hold the same to him and his successors and heirs, in trust, and for the following uses and purposes, to wit: to control and manage said real estate, and keep the same in good repair, and insured, and rent the same, and collect the rents and income of the same, pay all of the necessary current expenses, including one hundred dollars annually for his services in executing this trust, and to pay the net income annually, or oftener if the same shall be received quarterly, as follows: four-eighths or one-half to my two daughters, Martha A. and Lucy A., and the survivor of them, and one-eighth to each of the following: Lyman Harvey, Minnie R. Hulme, Lowell M., and Lucretia, his wife, as one party, or the survivor of them, and retain one-eighth of said net income for himself: said sums and income when so paid to be held by said children and their heirs forever. "In the management of said real estate I authorize my said trustee to collect and receive any insurance money for any loss that may occur to said property, or any assessments of benefits or other sums to be received on account of said estate, and expend the same or any part thereof in repairing or rebuilding any buildings thereon, and to manage said estate according to his best judgment for the benefit of my said children. "Whenever in the judgment of my said trustee said real estate or any part of the same can be sold at advantage, and all the adult beneficiaries under this will shall in writing consent to such sale and conversion of the same into money, then I authorize my said trustee to sell and convey the same by good and sufficient deeds of conveyance, and hold the proceeds of said sale in trust, instead of and in place of said real estate: and when my said son, Lowell M., and his wife, Lucretia, shall have deceased, and the youngest surviving child, issue of their bodies, shall have reached the age of twenty-one years, then I authorize and empower my said trustee, on the request in writing of the beneficiaries entitled to five-eighths of said income, to terminate said trust, and convey the principal of said trust estate to those entitled to the income, in the same proportion as said income is given: and if no request shall be so made at the end of thirty years from 'my decease, I declare said trust at an end, and direct said conveyance to the several beneficiaries in said proportions: and on such conveyance I give and bequeath said trust estate so held to said several parties, their heirs and assigns forever." The eighth paragraph makes provision for the care and maintenance of the two children of the deceased daughter, and the ninth paragraph disposes of the rest, residue, and remainder equally to his children; the heirs of the body of any deceased child taking the portion that such child, if living, would take. Andrew has qualified and is acting as the trustee under the provisions of said seventh paragraph. The value of the trust property is about $50,000. Edward A. Harriman, for Richard H. HubDell. William A. Wright, for Lyman H. Loomer. William S. Downs, for Andrew F. Loomer. Arthur M. Marsh, for Isaac W. Birdseye. PRENTICE, J. (after stating the facts). The questions upon which our advice is asked arise from the provisions of paragraph 7 of the will. The paragraph establishes a trust fund and creates a trust therein. The six surviving children of the testator are, beyond question, made the beneficiaries, for their respective lives, subject to the termination of the trust in the manner prescribed, of specified portions of the annual income. The ambiguity in the language employed raises an uncertainty as to the disposition of income in the event of the death of certain of the children. Is no disposition made in anticipation of such a contingency, is there to be an accumulation, are there rights of survivorship, or is the share of each deceased child given to his or her heirs? In answering these questions, we should aim to gather the testator's intent; and, to that end, we are entitled to look at the whole will, and its general plan and purpose, as disclosed therein. The testator, in the paragraphs preceding the seventh, had made absolute gifts to all his children, save one, created a trust for the benefit of that one and his family, and provided for the care of his grandchildren. It is apparent that his controlling purpose in framing paragraph 7 was to provide an assured source of income for his children, being especially mindful in that regard of the claims upon him of his two unmarried daughters, and, that done, to make a final disposition of the property, the income from which was devoted to that purpose. It is quite as apparent from the general scheme of the will that the testator had no intention of unduly favoring one child or stock over another. With these considerations in mind, it is not easy to read paragraph 7 throughout without becoming satisfied that, by the use of the words "and their heirs" in connection with the gifts of income, he meant to indicate that, in the event of the death of any of his children, the heirs of such child should become the beneficiaries of the allotted portion of income in its stead. The language used with respect to the power of sale, and especially the use of the phrase "adult beneficiaries" in the connection, and his language with respect to the final division of the trust fund, all emphasize the correctness of the interpretation indicated. There is nothing in the will to indicate any purpose to accumulate income, and the provisions relating to the final distribution of the trust fund, which are in express terms made applicable to the principal only, sufficiently negative the existence of such a purpose. A purpose to provide for survivorship, except as plainly indicated, is so foreign to everything in the will that it cannot be believed, in the absence of direction to that effect, that the testator intended to adopt a scheme which would inevitably operate to create discriminations between his grandchildren, depending upon the factitious circumstance of the order and time of survival among his children. That the testator made no provision for these contingencies of death, which, in view of the ages of his children, he must have contemplated, we are bound not to assume without satisfactory and convincing evidence to that effect from the will. Such evidence there is not, as we have observed. We have next to inquire as to the validity of this trust to pay income. The claimant under the conveyance by the trustee in bankruptcy contends that it is invalid under the common-law rule against restraints of alienation, since it may continue for the gross term of 30 years. There is no rule which limits the continuance of a trust to any period of time. A trust is no more invalid for the reason that it may continue 30 years, than is a life estate or estate in fee simple. The essential thing is that the beneficial interest under the trust vests in the cestui que trust within the time limited by law for the vesting of legal estates. Gray on Perpetuities, §§ 232, 322, 412; 2 Washburn on Real Property, § 1447; Perry on Trusts, § 383; In re Walkerly, 49 Am. St. Rep. (note) 129; Connecticut Trust & Safe Deposit Co. v. Hollister, 74 Conn. 228, 50 Atl. 750; Andrews v. Lincoln, 95 Me. 541, 50 Atl. 898, 56 L. R. A. 103. Applying this test, however, the trust to pay income cannot be saved in its entirety. The gift to the heirs upon the death of a child within 30 years from the testator's death is one which might not vest within the life of the child, or 21 years, plus the period of gestation, thereafter. Bates v. Spooner, 75 Conn. 501, 54 Atl. 305. It is possible, however, to sever the trust in the manner and for the reasons set out in the recent, analogous case of White v. Allen, 76 Conn. 185, 56 Atl. 519, and thus give effect to the testator's intent until the death of either Lyman, Andrew, or Minnie, or the survivor of Martha and Lucy, or the survivor of Lowell and his wife, Lucretia, when the trust must terminate, and division of the trust property be had to those entitled under the will to receive it, who will receive it as owners in fee simple. The concluding portions of the paragraph under consideration deal with this subject of the final division. They are not free from ambiguity, but, when read in the light of the testator's intention and testamentary plan, and in connection with the other provisions of the paragraph, it becomes clearly evident that the testator intended, by the language he used, to give to his children equitable remainders or cross-remainders in fee in specific undivided portions of the trust property, which should vest immediately upon his decease. Upon the termination of the trust, those possessed of the beneficial estate would forthwith become entitled to the legal. The concluding words of the paragraph, which were quite likely incorporated in it to express the purpose of the testator that the title acquired should be an absolute one, cannot, whatever their possible purpose, suffice to give to the testator's language any other intent and meaning than that indicated, which is otherwise so apparent. It appears, therefore, that the testator's two sons, Lyman H. and Andrew F., at the time of their adjudication as bankrupts, were each, as cestuis que trustent, entitled, under the paragraph of the will in question, to receive one-eighth of the net income of the trust estate during the continuance of the trust to pay income as aforesaid, and were each the owner of an equitable remainder in fee in an undivided one-eighth of the trust estate, with the right to have the full legal title thereto upon the termination of the trust. It needs no argument to show that, upon the adjudication in bankruptcy of Lyman and Andrew, all their remainder title and interest passed to the trustee in bankruptcy. National Bankrupt Act (Act July 1, 1898, c. 541, § 70a, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451]). It is, however, contended that their rights to the income under the trust did not so pass. Whatever may be said upon the much-mooted question as to the legality of so-called spendthrift trusts, it is clear that the trust in question possesses none of the attributes of the trusts SO described. The beneficial interests are absolute, and left wholly unrestrained and under the control of the beneficiaries. Such equitable estates, we have repeatedly held, are alienable, and may be subjected to the rights of creditors upon attachment and execution. Ives v. Beecher, 75 Conn. 564, 54 Atl. 207, and cases there cited. The equitable interests in question, therefore, passed to the trustee in bankruptcy, who thus, by virtue of the bankruptcy proceedings, came to stand in the shoes of the two bankrupts, as respects their rights under the paragraph of the will in question. As between the trustee in bankruptcy and the claimant Hubbell, to whom, on February 19, 1903, he conveyed the right, title, and interest of the two bankrupts in and to the lands in question, we understand that there is no dispute as to their respective rights. The trustee claims that share of the income to which the two bankrupts would have been entitled on February 19, 1903, had they not been adjudicated bankrupts; and Hubbell claims such share of subsequently accruing income, and their undivided shares in remainder in the real estate itself. These claims are well founded. The superior court is advised (1) that the defendant Birdseye, as trustee in bankruptcy, is entitled to receive from the trustee under the will two-eighths of the net income upon the trust estate designated in the seventh paragraph of the will, which accrued prior to February 19, 1903, and had not been paid over at the time of the adjudications in bankruptcy; and (2) that the defendant Hubbell is entitled to receive from said trustee, when the same shall become payable by the provision for distribution, two-eighths of all the net income which has accrued from said trust estate since said February 19, 1903, and from time to time, as payable, the like proportion of said income until the death of either Lyman, Andrew, or Minnie, or the survivor of Martha and Lucy, or the survivor of Lowell and his wife, Lucretia, and is the owner of an equitable remainder in fee in two undivided eighths of said trust estate, limited upon the event of death, which shall, as aforesaid, terminate his right to receive said share of income, with the right to the legal title in fee in said two undivided eighths upon said event, and to a conveyance thereof at that time from said trustee. No costs will be taxed in this court. The other Judges concurred. (76 Conn. 497) WILLISTON et al. v. HAIGHT. EQUITABLE MORTGAGE- FORECLOSURE-EVI- 1. An appeal from a judgment for a firm of brokers, foreclosing as a mortgage a quitclaim deed executed in blank by a third person, and delivered by defendant to a member of the firm whose name was inserted as grantee, was based on the insufficiency of the complaint as not showing title to or right in the land in question in either plaintiffs or defendants. The answer, however, admitted its delivery and acceptance pursuant to an agreement between the parties, and the main defense rested in the assumption that it was a valuable security in plaintiffs' hands. Its validity as a conveyance to the member named therein as grantee was not only not questioned in the trial court, but it was conceded that the deed was in equity a mortgage which defendant gave plaintiffs to secure his indebtedness to them, and he admitted that he was in possession of the mortgaged premises. The real dispute between the parties was wheth er, when plaintiffs accepted it, they agreed to carry defendant's account for 30 days from that time. Held, that the Supreme Court was not bound to consider whether the deed was in law such as to pass any title at all, or the insufficiency of the complaint in the particular referred to, neither questions having been made before the trial court, and, though it had the power to do so, the present case did not call for such action. 2. Where the assumption of an agreement on which certain claims of law made in the court below were based is not supported by the finding of the court as shown by the record on appeal, and the finding is not sought to be reviewed, it is conclusive as to the correctness of the court's action in rendering judgment notwithstanding such claims. 3. An action to foreclose a mortgage given to secure an account with a firm of brokers was defended on the ground that plaintiffs had violated their agreement, on the acceptance of the mortgage, to carry defendant's account for a specified time, and on the trial defendant was asked whether he had ever before been sold out under such circumstances as that in question. Held, that the question was properly excluded, as calling for irrelevant matter. Appeal from Superior Court, Fairfield County; William S. Case, Judge. Action by James R. Williston and others against William C. Haight to foreclose a mortgage of real estate given as security for a balance due for purchases of stock. Facts were found, and judgment rendered for plaintiffs, and defendant appeals. No er ror. Curtis Thompson, for appellant. Howard H. Knapp, for appellees. TORRANCE, C. J. The plaintiffs are James R. Williston, Robert L. Ide, Winthrop H. Barnes, and Thomas B. Atkins, all of New York, copartners under the firm name of J. R. Williston & Co., engaged in the banking and brokerage business in New York City, and the defendant is a resident of that city. The property sought to be foreclosed is in the city of Bridgeport, in this state. The complaint, as amended, alleges the following facts: On the 9th of October, 1901, the defendant owed the plaintiffs $10,000 for stocks purchased by them for his account and for interest due on said purchases. On the 2d day of October, 1901, the defendant delivered to the plaintiffs a quitclaim deed of a piece of land in Bridgeport, Conn., bounded and described as set forth in the complaint, "which deed, although dated on the 27th day of June, 1898, and executed in blank at that time, was not delivered until the 2d day of October, 1901, when the name of James R. Williston, one of the plaintiffs, was written in said deed as the grantee, and said James R. Williston received and accepted said deed for and in behalf of the plaintiff firm, of which he is a member." Said deed, although an absolute conveyance of the fee upon its face, was in fact in equity a mortgage, and given to secure the plaintiffs for the indebtedness that they held against the defendant. At the time of the delivery of said deed to James R. Williston said premises were subject to a mortgage of $10,000 to Thomas F. Martin. Said claim and indebtedness of the plaintiffs against the defendant is still held and owned by the plaintiffs, and is due and unpaid. The defendant is now in possession of said premises. The prayer for relief claimed, among other things, "a decree adjudging said conveyance to be a mortgage for the security of said indebtedness as alleged in the complaint." The answer admitted that the plaintiffs were bankers and brokers engaged in business as alleged in the complaint, the existence of the mortgage to Martin, and that defendant was in possession of the mortgaged premises. It denied the indebtedness due from the defendant to the plaintiffs as alleged, and it also denied the giving and delivery of the deed by the defendant to the plaintiffs, and that the same was in equity a mortgage to them, as alleged in the complaint, "except as hereinafter (i. e., in the answer) admitted." The answer then set up the following facts: On June 21, 1898, one Charles R. Clarke conveyed the mortgaged premises by an absolute warranty deed to one Francis W. Marsh, to secure a loan of $600 then made by said Marsh to the defendant. "On June 27, 1898, said Marsh, having been paid said $600, executed said quitclaim deed, leaving the name of the releasee in blank, and delivered the same to the defendant. On or about September 30, 1901, the plaintiffs, who had for some time prior thereto been engaged in buying and selling stocks on a margin for the defendant, and who then held stocks and securities therefor for him, agreed with the defendant to carry the stocks then held by them, and also three hundred shares of other stocks which they then advised him to buy, and which they bought, being the same as described in the bill of particulars, for a period of thirty days, at least, thereafter, and until they gave him reasonable notice, subject to his right at any time to have said stock sold by them at his direction and for his benefit, in consideration that he would give to them said quitclaim deed as collateral security for whatever sum should be found due upon striking an account from him to them; and thereupon he accepted their proposition, and performed his part of said agreement, by filling in the blank in said deed with the name of James R. Williston, and delivered said deed to him for the plaintiffs, to be held by them pursuant to said agreement. The plaintiffs, in violation and breach of their said agreement, before the expiration of the time for which they had agreed as aforesaid to carry said stocks for the defendant, without giving him reasonable notice, without any direction there to from the defendant, and without his knowledge or assent, and in violation of his rights, between the 2d and 11th days of October, 1901, sold and conveyed the said stocks." The defendant also, by way of counterclaim, claimed damages caused as alleged by the breach of the agreement set up in the answer. In reply the plaintiffs in effect denied the new matter set up in the answer and the allegations of the counterclaim. The material facts found by the court below are the following: The defendant became a customer of the plaintiff firm in August, 1901, and in the following month of September the condition of the market was such, and the depreciation in the securities purchased for account of the defendant was such, that in accordance with their arrangement with him the plaintiff firm called for a cash margin from the defendant, who turned over to them one bond, par $1,000 (real value $980), as security, and seven bonds, par $1,000, but which were then in fact, and still are, valueless. During the latter part of the same month, the market continuing to fall off, and the securities purchased for the defendant still shrinking in value, the plaintiff firm called upon the defendant for further margin. The defendant, not having the ready money, told the plaintiff firm that he expected to be able to raise it within a day or two, but that he would and did in fact on September 30, 1901, deliver to them the quitclaim deed (foreclosed in this action) as security for his account. The defendant was again notified that the necessary cash margin must be paid by October 2d at 2 o'clock, or the brokers would be compelled to sell in the market the securities being carried for him. Such sale was not made on that day, however, but subsequently, as the promise of the defendant made on the day named for the sale was not realized, and the plaintiff firm having found that the property described in the deed was subject to a mortgage of $10,000, and not free of incumbrance, as represented by the defendant at the delivery of the deed, on the 8th day of October sent a written notice to the residence of the defendant in New York City that the necessary margin, amounting to $18,000, must be paid by noon of October 9th, or they would be compelled to sell the securities, and, not hearing from the defendant, such a sale was had on October 9th, and the avails thereof credited to the account of said defendant, who, after such credit, owed the plaintiff firm the sum of $9,317.57. All of the steps taken by the plaintiff firm as to the manner of giving notice to the defendant of the required cash margin, and in the time of the giving of such notice, and in the time given the defendant in which to comply with such notice, and of the holding of such sale, were in all respects in accordance with the customs and usages of brokers with their marginal customers, of whom the defendant was one. "The defendant, upon the trial, conceded that the deed in question was in fact, in equity, a mortgage deed, given to secure the plaintiffs for their claim against the de fendant for margin, but the parties were at issue as to the precise nature of the transaction of September 30, 1901; the defendant claiming that the plaintiff, in accepting the said deed as security, agreed to carry the defendant's account for 30 days from that time, during which time he should get the required cash margin. The plaintiffs claimed, on the other hand, that there was no agreement whatever on their part that they would carry the account of the defendant for thirty days, or any other period of time, and no agreement other than that stated in this finding, and I find as a fact that the plaintiffs' claim as to what occurred on September 30th is true as above set forth." On this appeal the defendant says the court below erred in rendering judgment upon the complaint, in overruling certain of his claims of law, and in two rulings upon evidence. The following are the reasons of appeal: "(1) The complaint does not warrant the judgment: (a) Because it does not appear in the complaint that the plaintiffs, as described therein, have the legal or any title to the real estate sought to be foreclosed, and it does appear that only one of the firm, viz., James R. Williston, has the legal or any title to said real estate. (b) Because it does not appear in the complaint that the defendant has the legal or any title to the said real estate, or any interest therein. (c) Because it does not appear in the complaint that the defendant is the owner of the equity, or has the right of redemption in said real estate. (2) In rendering the judgment upon the allegations of the complaint, and the facts set forth in the finding, because of the want of title in the plaintiffs and in the defendant. (3) In overruling the claims of law stated in the last paragraph of the finding, and numbered 1 to 11, inclusive. (4) In rejecting the testimony of one Brewer and of the defendant as stated in the finding." The first and second reasons of appeal may be considered together. They attack the sufficiency of the complaint in this: that it does not show title to or right in the land in question in either plaintiffs or defendant. The answer admits that the deed in question was delivered to and accepted by the plaintiffs after filling the blank left for the name of the grantee with the name of James R. Williston, pursuant to an agreement between the plaintiffs and the defendant, and the main defense set up rests upon the assumption that this deed, in the shape thus given it, was a valuable security in the plaintiffs' hands. Neither party now questions, or has ever questioned, the validity of the deed as a conveyance to James R. Williston. The defendant, in his reasons of appeal, asserts that he has no title to the granted premises, and that the title is not in the plaintiffs, but only in one of them individually. We are therefore not called upon to determine whether the deed was, in law, such as to pass any title at all. Neither that |
