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in this court; that he refused to appear to ended by the arrangement between the parthe action in question, and no jurisdiction ties. This ground of demurrer is, however, was obtained over him, because he was a untrue in fact, for it does not appear by the nonresident. The demurrer also admits that supplemental bill that the payment of $500 the defendant is financially irresponsible, and in cash, and the retaining of part of the land that he could not be compelled to convey the as security for the $1,000 to be paid in the premises wrongfully withheld by him with- future, were agreed and arranged to be paid out resulting delays, which he knew would and secured in settlement of the suit, nor subject the complainants, by loss of interest does the supplemental bill anywhere show and the inability to use their property, to that those steps ended the litigation pending great damage and injury; that, in further- when they were taken. On the contrary, the ance of his original purpose to extort money acts of the defendant with respect to these to which he was not entitled from the com- payments are by the supplemental bill alplainants, the defendant required and forced leged to have been part and parcel and in the complainants, in order to avoid the losses aid of his original purpose to retain the title which would result from his willful delay to the land in question until he was, by any in carrying out the plan which he had process available to him, able to extort monagreed to aid, to consent to the deposit in eys from the complainants which were in no escrow of the instruments, which he had way rightfully due or payable to him, and originally agreed to execute and deliver with- that the $500 and the promise to pay the out price, upon the terms that $500 should $1,000 were forced from the complainants be paid to him in cash, and that an addi- in pursuance of the defendant's original purtional $1,000 should be secured to be paid to pose to cheat them. By the demurrer the him within six months thereafter, by his defendant has admitted these allegations to retention of a portion of the lands to which be true. It is the defendant who by the he held the title, and which he had agreed, demurrer itself introduces the statement that as stated, to convey, without price, to the the payment in cash of the $500, and the new company. These facts are all of them
securing of the $1,000 by the retention of pertinent to the relief sought by the coin- a part of the land, were in settlement of plainants' supplemental bill, and may justly the original suit, and that said suit is no be said to be well-pleaded allegations. By longer pending. His pleading not only thus admitting them to be true, the demurrapt introduces a new fact into the record, but, confesses that he received the title in ques- having so brought in the new fact, he makes tion upon a trust declared by him in writing, it a ground for challenging the complainwhereby he agreed to make a certain disposi- ants' bill. tion of that title. He also admits that, for The second ground of demurrer is that it the purpose and with the intention to ex
appears by the supplemental bill that “the tort from the complainants sums of money complainants did receive from this defendwhich they did not owe him, and which were ant the deed referred to, in consideration of in no manner or way due or payable to him, the $500 cash and the further sum of $1,000, he has abused the confidence so reposed in and that the supplemental bill does not albim, and has by such extortion actually re- lege any offer or readiness by said complainceived $500 in cash in breach of his trust, ants to reconvey the said premises conveyed and bas retained a part of the land, which by this defendant to said complainants in by his trust he was obliged to convey with- exchange for said, payment and agreement. out charge, as a means of extorting the pay. for further payment," and that the complain. ment of the additional sum of $1,000. The ants have thereby failed to offer to put the complainants, in their supplemental bill of defendant in the position in which he was complaint, designate the defendant's demand
prior to the making of said deed, which, in for, and compulsion of, payment of this mon- equity, he must offer to do before he can obey, as blackmail. It is difficult, taking the tain any relief in this court. This ground of facts admitted by the demurrer to be true, demurrer misrecites the facts narrated in to see wherein this designation is an injus- the supplemental bill. That bill does not tice.
state that the deed in question was received The first ground of the demurrer alleges by the complainants, or that it ever came that it appears by the supplemental bill that into their possession. All that is alleged rethe matters and things in issue between the garding the actual delivery of the deed out parties, set forth in the original bill, have of escrow is that “the deed of the property been settled, and the suit ended, and that was obtained, and the same is now record. there is not now any suit pending on the ed," etc., but the bill does not state by whom original bill, etc. The counsel for the demur. it was obtained or recorded. It may have rant, iu argument, contends that the moneys been, and presumably was, delivered to the paid and secured to be paid by the complain- grantee named in it. The demurrer again ants were by them expended or secured to misrecites the statements of the supplementsettle a pending litigation, and that they are al bill, for that bill does not allege that the not recoverable, even if the defendant's claim defendant conveyed the property in question (which was the cause of the litigation) could to the complainants, as is stated in the de. not be sustained, and that the litigation was murrer. On the contrary, there is an express
allegation that the deed conveyed it to the newly incorporated company, the Urban & Suburban Realty Title Company.
The demurrer, in the several particulars enumerated, restates facts differently from the allegations of the supplemental bill, and makes the new facts thus introduced the ground of criticism of that bill. All the objections made to the bill, whether in the statement of the grounds of the demurrer, or in the argument of the defendant's counsel in support of it, depend for their force, not upon the allegations of the complainants in the supplemental bill, but upon the new facts introduced by the demurrant himself in the demurrer. He thus makes the case to which he demurs. It is a principle of correct pleading that a demurrer can only be founded on a fact or omission appearing in the bill. It cannot set up a fact or omission not appearing in the bill, and thereupon demur. Black v. Shreeve, 7 N. J. Eq. 458. Such a pleading is a speaking demurrer, which cannot be sustained. Estell v. Buchanan, 2 Ves. Jr. 83; Story, Eq. Pl. 448.
Aside from this somewhat technical examination of the demurrer in question, the complainants, in view of the facts pleaded in the supplemental bill and admitted by the demurrer, are under no obligation to tender a reconveyance of the land to the defendant as an incident of their application to this court for relief. The demurrant has, by his de. murrer, admitted that he was lawfully and equitably bound to convey to the proposed new company the whole of the land in question. He has in the same manner admitted that he has wrongfully retained a portion thereof as security for a sum of money
ly have jurisdiction, provided such offenses would have been within the final jurisdiction of the respective justices of the city, borough, town, or police courts having jurisdiction of the same, etc.; section 1254 declares that perjury shall be punished by imprisonment in jail for not more than six months, or in state prison for not more than five years; and section 1446 declares that no justice of the peace of a borough, town, or city court shall have final jurisdiction of any prosecution for crime the punishment for which may be imprisonment in the state prison. Held, that a criminal court of common pleas has no jurisdiction of a prosecution for perjury.
Appeal from Criminal Court of Common Pleas, New Haven County; James Bishop, Judge.
Information against James Campane for perjury filed in the criminal court of common pleas for New Haven county. Defendant's motion to erase the case from the docket was denied, and from a judgment of conviction he appeals. Reversed.
Charles S. Hamilton, for appellant. Robert J. Woodruff, for the State.
ants. There is no legal or equitable" oblia for
gation on the part of the complainants, taking these admitted facts to be true, to restore to the defendant the property which he admits does not belong to him, and which he also admits he was rightfully bound to convey to the corporation which now holds the title.
The complainants' supplemental bill must therefore be held to state a lawful cause of action against the defendant. The demurrer must be overruled with costs, with leave to the defendant to answer the complainants' bill within 20 days, or, in default thereof, the bill will be taken as confessed.
HAMERSLEY, J. The criminal eourt of common pleas is an inferior court established by the Legislature. Its jurisdiction, as originally defined by statute, is purely appellate. It is empowered to retry by jury cases once tried by a justice of the peace or by a munici. pal court having jurisdiction and powers similar to those given to justice courts. Its judgment upon conviction of the accused can impose no greater punishment than that which might have been imposed by the court from which the cause is transferred by the appeal. A prosecuting attorney was provided, with power necessary to conduct the trial of the case appealed, upon the complaint preferred to the justice court. In 1895 the at. torney was authorized to file an information in lieu of the complaint in any appealed case, and also to file an information for any offense within the jurisdiction of a justice or municipal court which was subject to the appellate jurisdiction of the criminal court of common pleas, provided that, if a complaint for the offense charged had been made to the local court having jurisdiction thereof, the matter would have been within the final jurisdiction of that court, and upon such information being filed the criminal court of common pleas is given jurisdiction to proceed with the trial of the offense charged in the same manner and with the same power as in appealed cases. These provisions are now embodied in sections 1482 and 1483 of the General Statutes of 1902.
We think that "final jurisdiction," as used in section 1483, means a jurisdiction to try the cause, and upon conviction to impose the full penalty prescribed, as distinguished from a jurisdiction given in respect to offenses the punishment whereof may be greater or less than that which a justice court can impose. In the latter case the justice may bind the offender over to the superior court for trial, or may convict him, and impose a penalty not
(76 Conn, 549)
STATE V. CAMPANE. (Supreme Court of Errors of Connecticut.
March 3, 1904.) CRIMINAL COURT OF COMMON PLEAS-JURIS
DICTION-PERJURY. 1. Gen. St. 1902, 88 1482, 1483, authorize prosecuting attorneys of criminal courts of common pleas to file informations in appealed cases, and provides that said attorneys may file informations for any offenses occurring within the territory within which the courts respective
exceeding that within the jurisdiction of a within whose jurisdiction it may be commitJustice court; but the offense is within the ted, and this power of securing such modificajurisdiction of the superior court until the jus- tion of the punishments prescribed by stat. tice court has determined upon the circum- ute is vested in the prosecuting attorney of an stances of the particular case, as proved be- inferior court, created for the sole purpose of fore him, that no greater punishment ought trying justice and municipal court appeals. to be imposed than that which he may law- A construction involving such results should fully inflict, and the justice cannot exercise not be adopted, if the doubtful language is any final jurisdiction until the nature of the fairly susceptible of another construction proparticular offense has been thus determined. ducing more reasonable results.
Section 1483 does not give the criminal In State v. Hartley, 75 Conn. 104, 52 Atl. court of common pleas original jurisdiction of 615, we held that final jurisdiction, as used such offenses. The language of the section is in section 1483, meant a jurisdiction to try, necessarily somewhat obscure. The Legisla- convict, and punish, as distinguished from ture attempts, in a single sentence and in a jurisdiction to try and bind over to the sugeneral terms, to define a jurisdiction varying perior court. In that case the information in each locality-in three different counties of the prosecuting attorney charged an ofwhere offenses may be committed. It had fense for which the local police court could to aonsider not only the general jurisdiction inflict the full penalty. But upon argument of justice courts, but the exceptions pertain- of the case the meaning of section 1483 was ing to some particular offenses, the diverse discussed and thoroughly handled, and our Jurisdiction of a large number of city, town, conclusion was largely based upon the conand borough courts, and to guard against any struction of the statute as above stated. infringement of the peculiar jurisdiction of Perjury is punishable by imprisonment in the district court of Waterbury. Upon a jail for not more than six months, or in state careful study of the language of the section, prison for not more than five years. Gen. and of the conditions in view of which it
St. 1902, § 1254. The criminal court of comwas used, it seems quite clear that the Legis.
mon pleas bas no original jurisdiction of lature intended to and did give the criminal
this offense, and the motion of the accused court of common pleas original jurisdiction
to erase the case from the docket should have of any offense within the jurisdiction of the been granted. justice and municipal courts, subject to its Another decisive objection to the jurisdicappellate jurisdiction when, and only when, tion of the trial court is found in section 1446 the court within whose jurisdiction the of- of the General Statutes of 1902: “No justice fense might be committed would have power of the peace, borough, town, or city court, to try the same, and upon conviction to im- shall have final jurisdiction of any prosecupose the fuil penalty inscribed, and did not tion for crime, the punishment for which intend to and did not give to the criminal
may be imprisonment in the state prison." court of common pleas any original jurisdic. Possibly the charter of the city of New Hation of offenses within the jurisdiction of the
ven may except the New Haven city court superior court. Even if the meaning of the
from the operation of this statute. Charter language were doubtful, there are considera
1899, § 185. The language used in the chartions which make this interpretation of it the
ter is not clear, and should, for obvious reamore reasonable one.
sons, be construed, if it reasonably can be, as Offenders who commit offenses the punish- consistent with the settled policy of the state ment whereof may exceed or be less than expressed in section 1446. The case before that which justice or municipal courts can us does not, however, require a decision of impose can only receive the greater penalty
this question. As the court had no jurisdicin the superior court. Such offenses can only
tion of the cause, the other reasons of apbe brought before the superior court through | peal are immaterial. an information filed therein by the state's at. torney, or through a binding over by a justice criminal court of common pleas. The judgor municipal court. The criminal court of
ment is reversed, and that court is directed common pleas clearly has no power of bind
to erase the case from its docket for want of ing over, and no power to inflict punishment jurisdiction. The other Judges concurred. for any offense greater than that which can be imposed by the justice or municipal court within whose jurisdiction the offense is com
(76 Conn. 560) mitted. If section 1483 is construed as giving to the criminal court of common pleas the
BEARDSLEY et al. v. BRIDGEPORT PROT
ESTANT ORPHAN ASYLUM et al. original jurisdiction claimed, the act not only creates a jurisdiction concurrent with that (Supreme Court of Errors of Connecticut. of the superior court, but provides that any
March 3, 1904.) exercise of this jurisdiction by the criminal WILLS-RESIDUARY ESTATE-GENERAL LEG
ACY-WHEN PAYABLE-TRUST ESTATE court of common pleas shall operate to reduce the maximum penalty of the offense commit
1. Where a will gave testator's estate to his ted to the maximum punishment that can be
wife for life, and appointed trustees for the Imposed by the justice or municipal court residuary estate, the residuary estate became
perhere is error in the Judgment of the
ADMINISTRATION OF TRUST.
vested in the trustees at the death of the tes- | Twenty-Four Thousand Dollars ($24,000) to tator, subject to the life use of the widow,
the following named objects, respectively." 2. Where testator's will gave his wife an estate for life in all his property, after which
Twelve lega'tees, mostly charitable corporageneral legacies were to be paid by trustees, tions, were then named, and there was addwho were not to receive the trust fund until ed: "The above $24,000 to be paid $2,000 the final settlement of the estate, such legacies each to the above named objects.” were payable as of the date of the termination of the life estate, in the event of such termina
"Seventh. I hereby direct that the said tion occurring more than one year after the de- Trustees pay from my Residuary Estate the cease of testator.
sum of Twelve Thousand Dollars ($12,000) to 3. Where testator's will gave his wife a life estate, and provided that on her death the trus
my nephew, Nichols B. Trulock, of Pine tees, to whom a residuary estate was given, ! Bluff, Arkansas.” should pay certain general pecuniary legacies, "Eighth. I hereby direct that the said the division of the residuary trust estate into
Trustees pay from my Residuary Estate the separate shares should be made at the termination of the widow's life estate.
sum of Twelve Thousand Dollars ($12,000) to 4. Where testator's will gave his wife a life my nephew, J. Burton Trulock, of Pine Bluff, estate in all his property, and provided that on Arkansas." the termination of that estate the trustees ap
“Ninth. I hereby direct that the said pointed by the will should pay general pecuniary legacies to such grandnephews and grandnieces Trustees pay from my Residuary Estate the "as may be living at my death, or may be born sum of Twelve Thousand Dollars ($12,000) to thereafter," the will referred only to births oc- my grandpiece, Clara T. Hathaway, wife of curring between the death of the testator and that of his widow.
George T. Hathaway, of Bridgeport, Ct.” 5. Gen. St. 1902, $ 255, provides that trustees “Tenth. I hereby give to the said Trustees may hold such securities as may be received by the sum of Twelve Thousand Dollars ($12,them as constituting the trust estate, without 000) to be held in trust for my nephew Maraltering the form of investment, unless otherwise ordered by the probate court, so long as, in
shall S. Trulock of Pine Bluff, Arkansas-the exercise of reasonable prudence, they may deem income to be paid to him semi-annually as it unnecessary to make any change. Held, that long as he may live, and at his death the wbere trustees under a will were given two specified sums, the income from each of which was
same to be paid to his heirs at law." to be paid to a certain person for life, with re
"Eleventh. I hereby give to the said Trusmainder to his heirs, though the property made tees the sum of Twelve Thousand Dollars over to the trustees was not of the kind in
($12,000) to be held in trust for my nephew which trust funds are ordinarily invested, it was not incumbent on the trustees to sell out
James H. Trulock of Pine Bluff, Arkansasthe securities in order to raise the sums in cash. the income to be paid to him semiannually as
long as he may live, and at his death the Case Reserved from Superior Court, Fair
same to be paid to his heirs at law." field County; William T. Elmer, Judge.
“Twelfth. I give and bequeath to Miss LuAction by the trustees under the will of Bronson B. Beardsley for a construction of the will. Case reserved for the advice of plated ware, jewelry and wearing apparel.
ture, pictures, library, bedding, silver and the Supreme Court of Errors. Will constru
Also my horse, carriages, and all thereto be ed.
longing, absolutely after the death of my The material parts of the will were as fol. wife, with the request that she shall give to lows:
my grandniece (Mrs. Clara T. Hathaway) any “Third. I hereby devise and bequeath the of the portraits or other things she may dewhole of my residuary estate, both real and sire.” personal, to my beloved wife, Mary W. “Thirteenth. I hereby direct that the rest Beardsley, during her life, for her sole use and residue of my estate shall be given in and benefit, and, at her death, I hereby ap- equal shares to each of my grandnieces and point Mrs. Marcia Beardsley, my sister, of grandnephews as may be living at my death, Bridgeport, Ct., and Miss Lucinda T. Mont- or may be born thereafter-as followsgomery, above mentioned, and Clara T. Hath- "To those who may already have reached away-wife of George T. Hathaway, of the age of twenty-five, I direct that their Bridgeport, Ct., as Trustees for all my residu- shares shall be given to them absolutely. ary estate, and I hereby request that when "Fourteenth. The remaining shares I give they deem it necessary—to counsel with Mor- and bequeath to Miss Marcia Beardsley, Miss ris P. Beardsley, Esq., of Bridgeport, Ct., or Lucinda T. Montgomery and Mrs. Clara T. Oswald P. Backus, Esq., of Rome, N. Y., or Hathaway, to be by them held in trust for both, and I do hereby direct that the said the other grandnieces and grandnephews un. Trustees and their successors shall hold and til they several reach the ages of twenty-five, manage and appropriate the said residuary when said shares with the accrued interest estate in the following manner.
shall be given to them respectively. If any “Fifth. I hereby direct that the said Trus- of them shall die before attaining the age of tees above named shall pay to Miss Katie twenty-five years-leaving issue--I then diFitzpatrick the sum of Five Hundred Dol- rect that such issue shall take the share their lars ($500), she having been a faithful domes- parent would have had if living to the age of tic in my family for many years."
twenty-five years as aforesaid. But if any "Sixth. I hereby direct that said Trustees of my grandnieces and grandnephews shall pay from my residuary estate the sum of die before reaching the age of twenty-five
years-leaving no issue, their share or shares shall be divided equally among the survivors.”
The first codicil contained this clause:
"It is my will that out of the Residuary Estate therein mentioned, there shall be paid to George T. Hathaway-husband of Clara T. Hathaway therein named, the sum of Three Thousand Dollars ($3,000)."
A second codicil was executed in 1898, în which year the testator died.
The widow was made the sole executrix. She died in 1903, and an administrator de bonis non with the will annexed upon the testator's estate was thereupon appointed, who shortly afterwards paid over the residuary estate, which was all personal estate, to the trustees, after deducting the proper charges.
Samuel F. Beardsley, for plaintiffs. Stiles Judson, Jr., for defendants Trulock and others.
make any change. See Clark v. Beers, 61 Conn. 817, 23 Atl. 717.
The trustees under the will before us were given two sums of $12,000, the income from each of which funds was to be paid over to a certain person for life, with remainder to his heirs. It is not incumbent upon them to sell out securities belonging to the trust estate, which they might otherwise keep, under the rule above laid down, in order to raise these sums in cash. Thąt would require an immediate reinvestment in other securities; their holding which might, perhaps, unnecessarily narrow the income of the life tenant.
We confine our advice to the points on which advice was asked for in the complaint. The superior court is advised to render judgment in conformity with this opinion. No costs will be taxed in this court for or against either party. The other Judges concurred.
BALDWIN, J. (after stating the facts). The residuary estate became vested in right in the trustees at the death of the testator, subject to the life use of the widow. Upon her death they became entitled to the possession, subject only to a deduction for the charges incident to the final settlement of the testator's estate. General legacies, in the absence of any provision to the contrary, do not become payable, by the rules of the common law, until a year after the testator's death. This time is given to enable the executor to satisfy them without unnecessary sacrifice. No such cause can exist in the case of legacies made payable by trustees who are not to receive the trust fund until after the final settlement of the estate. The pecuniary legacies, therefore, left by the testator in the 5th, 6th, 7th, 8th, 9th, 10th, and 11th sections of his will, and in the first codicil, were payable as of the date of the expiration of the life estate, provided that event should occur, as it did, mgie than one year after the decease of the testator. The division of the residuary trust estate into separate shares is to be made as of the same date. There can be no reason for deferring it, unless the formation of the class of grandnephews and grandnieces should be postponed to await the possible birth of more thereafter. It would require clear words to justify such a postponement, and those used in the will may be fairly considered to refer only to births occurring between the death of the testator and that of his widow. No grandnephew or grandniece, in fact, was born or died during that period. The property made over to the trustees were not of the kind in which trust funds are ordinarily invested. Under Gen. St. 1902, 8 255, however, trustees are authorized to hold such securities as may be received by them as constituting the trust estate, without altering the form of investment, unless otherwise ordered by the court of probate, so long as, in the exercise of reasonable prudence, they may deem it unnecessary to
(76 Conn. 522) LOOMDR y. LOOMER et al. (Supreme Court of Errors of Connecticut.
March 3, 1904.) WILLS-CONSTRUCTION-INTENT OF TESTATOR -CONSIDERATION OF WHOLE INSTRUMENTTRUST ESTATES - PERPETUITIES-TERMINATION OF TRUST-REMAINDER INTEREST BANKRUPTCY-TITLE OF TRUSTEE.
1. In construing a will, and the rights thereunder, the testator's intent should be gathered from the whole will, and its general plan and purpose as disclosed therein.
2. A testator, in the first six paragraphs of his will, made absolute gifts to all his children save one, created a trust for that one, and provided for the care of his grandchildren; it being his evident purpose to treat all impartially, except that a greater provision was made for unmarried daughters. The seventh paragraph of the will devised property of about $30,000 in value to one son, in trust to pay the expenses, and collect the rents and income thereof, and pay them over in stated proportions to each of his six children; "said sums and income, when so paid, to be held by said children and their heirs forever.” Further provisions of the trust authorized the sale of the premises with the consent of all the “adult beneficiaries." No provision was made for the contingency of the death of any of the children, and yet they ranged in age from 44 to 67 years, and three of them were married and had grown-up children. Held, that it was the evident intent of the testator not to provide for a survivorship in case of the death of any of the children, but that in such event the heirs of the deceased child should become the beneficiary of its allotted portion of the income of the trust.
3. The continuance of a trust is not limited by rule of law to any period of time, but the thing necessary to its validity is that the beneficial interests thereunder shall rest in the cestuis que trustent within the time limited by law for the vesting of legal estates.
4. A provision in a trust clause in a will that, if no request for the termination of the trust be made at the end of 30 years from testator's decease, the trust shall be at an end, and the trust estate shall be held by the several cestuis que trustent, their heirs and assigns, is void, as a perpetuity.
5. Where a trust created by a will was void, as a perpetuity, in its provision for termination on a certain contingency, the void portion could
I 4. See Perpetuities, vol. 39, Cent. Dig. $ 50.