in this court; that he refused to appear to the action in question, and no jurisdiction was obtained over him, because he was a nonresident. The demurrer also admits that the defendant is financially irresponsible, and that he could not be compelled to convey the premises wrongfully withheld by him without resulting delays, which he knew would subject the complainants, by loss of interest and the inability to use their property, to great damage and injury; that, in furtherance of his original purpose to extort money to which he was not entitled from the complainants, the defendant required and forced the complainants, in order to avoid the losses which would result from his willful delay in carrying out the plan which he had agreed to aid, to consent to the deposit in escrow of the instruments, which he had originally agreed to execute and deliver without price, upon the terms that $500 should be paid to him in cash, and that an additional $1,000 should be secured to be paid to him within six months thereafter, by his retention of a portion of the lands to which he held the title, and which he had agreed, as stated, to convey, without price, to the new company. These facts are all of them pertinent to the relief sought by the complainants' supplemental bill, and may justly be said to be well-pleaded allegations. By admitting them to be true, the demurraut confesses that he received the title in question upon a trust declared by him in writing, whereby he agreed to make a certain disposition of that title. He also admits that, for the purpose and with the intention to extort from the complainants sums of money which they did not owe him, and which were in no manner or way due or payable to him, he has abused the confidence so reposed in him, and has by such extortion actually received $500 in cash in breach of his trust, and has retained a part of the land, which by his trust he was obliged to convey without charge, as a means of extorting the pay. ment of the additional sum of $1,000. The complainants, in their supplemental bill of complaint, designate the defendant's demand for, and compulsion of, payment of this money, as blackmail. It is difficult, taking the facts admitted by the demurrer to be true, to see wherein this designation is an injustice. The first ground of the demurrer alleges that it appears by the supplemental bill that the matters and things in issue between the parties, set forth in the original bill, have been settled, and the suit ended, and that there is not now any suit pending on the original bill, etc. The counsel for the demurrant, in argument, contends that the moneys paid and secured to be paid by the complainants were by them expended or secured to settle a pending litigation, and that they are not recoverable, even if the defendant's claim (which was the cause of the litigation) could not be sustained, and that the litigation was ended by the arrangement between the parties. This ground of demurrer is, however, untrue in fact, for it does not appear by the supplemental bill that the payment of $500 in cash, and the retaining of part of the land as security for the $1,000 to be paid in the future, were agreed and arranged to be paid and secured in settlement of the suit, nor does the supplemental bill anywhere show that those steps ended the litigation pending when they were taken. On the contrary, the acts of the defendant with respect to these payments are by the supplemental bill alleged to have been part and parcel and in aid of his original purpose to retain the title to the land in question until he was, by any process available to him, able to extort moneys from the complainants which were in no way rightfully due or payable to him, and that the $500 and the promise to pay the $1,000 were forced from the complainants in pursuance of the defendant's original purpose to cheat them. By the demurrer the defendant has admitted these allegations to be true. It is the defendant who by the demurrer itself introduces the statement that the payment in cash of the $500, and the securing of the $1,000 by the retention of a part of the land, were in settlement of the original suit, and that said suit is no longer pending. His pleading not only thus introduces a new fact into the record, but, having so brought in the new fact, he makes it a ground for challenging the complainants' bill. The second ground of demurrer is that it appears by the supplemental bill that "the complainants did receive from this defendant the deed referred to, in consideration of the $500 cash and the further sum of $1,000, and that the supplemental bill does not allege any offer or readiness by said complainants to reconvey the said premises conveyed by this defendant to said complainants in exchange for said payment and agreement. for further payment," and that the complain. ants have thereby failed to offer to put the defendant in the position in which he was prior to the making of said deed, which, in equity, he must offer to do before he can obtain any relief in this court. This ground of demurrer misrecites the facts narrated in the supplemental bill. That bill does not state that the deed in question was received by the complainants, or that it ever came into their possession. All that is alleged regarding the actual delivery of the deed out of escrow is that "the deed of the property was obtained, and the same is now recorded," etc., but the bill does not state by whom it was obtained or recorded. It may have been, and presumably was, delivered to the grantee named in it. The demurrer again misrecites the statements of the supplemental bill, for that bill does not allege that the defendant conveyed the property in question to the complainants, as is stated in the demurrer. 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 which he seeks to extort from the complainants. There is no legal or equitable obligation 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. (76 Conn. 549) STATE v. CAMPANE. (Supreme Court of Errors of Connecticut. March 3, 1904.) CRIMINAL COURT OF COMMON PLEAS-JURISDICTION-PERJURY. 1. Gen. St. 1902, §§ 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 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. 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 municipal 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 attorney 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 exceeding that within the jurisdiction of a justice court; but the offense is within the jurisdiction of the superior court until the justice court has determined upon the circumstances of the particular case, as proved before him, that no greater punishment ought to be imposed than that which he may lawfully inflict, and the justice cannot exercise any final jurisdiction until the nature of the particular offense has been thus determined. It had Section 1483 does not give the criminal court of common pleas original jurisdiction of such offenses. The language of the section is necessarily somewhat obscure. The Legislature attempts, in a single sentence and in general terms, to define a jurisdiction varying in each locality-in three different counties where offenses may be committed. to consider not only the general jurisdiction of justice courts, but the exceptions pertaining to some particular offenses, the diverse Jurisdiction of a large number of city, town, and borough courts, and to guard against any infringement of the peculiar jurisdiction of the district court of Waterbury. Upon a careful study of the language of the section, and of the conditions in view of which it was used, it seems quite clear that the Legislature intended to and did give the criminal court of common pleas original jurisdiction of any offense within the jurisdiction of the justice and municipal courts, subject to its appellate jurisdiction when, and only when, the court within whose jurisdiction the offense might be committed would have power to try the same, and upon conviction to impose the full penalty inscribed, and did not intend to and did not give to the criminal court of common pleas any original jurisdiction of offenses within the jurisdiction of the superior court. Even if the meaning of the language were doubtful, there are considerations which make this interpretation of it the more reasonable one. Offenders who commit offenses the punishment whereof may exceed or be less than that which justice or municipal courts can impose can only receive the greater penalty in the superior court. Such offenses can only be brought before the superior court through an information filed therein by the state's attorney, or through a binding over by a justice or municipal court. The criminal court of common pleas clearly has no power of binding over, and no power to inflict punishment for any offense greater than that which can be imposed by the justice or municipal court within whose jurisdiction the offense is committed. If section 1483 is construed as giving to the criminal court of common pleas the original jurisdiction claimed, the act not only creates a jurisdiction concurrent with that of the superior court, but provides that any exercise of this jurisdiction by the criminal court of common pleas shall operate to reduce the maximum penalty of the offense committed to the maximum punishment that can be imposed by the justice or municipal court within whose jurisdiction it may be committed, and this power of securing such modification of the punishments prescribed by statute is vested in the prosecuting attorney of an inferior court, created for the sole purpose of trying justice and municipal court appeals. A construction involving such results should not be adopted, if the doubtful language is fairly susceptible of another construction producing more reasonable results. In State v. Hartley, 75 Conn. 104, 52 Atl. 615, we held that final jurisdiction, as used in section 1483, meant a jurisdiction to try, convict, and punish, as distinguished from a jurisdiction to try and bind over to the superior court. In that case the information of the prosecuting attorney charged an offense for which the local police court could inflict the full penalty. But upon argument of the case the meaning of section 1483 was discussed and thoroughly handled, and our conclusion was largely based upon the construction of the statute as above stated. Perjury is punishable by imprisonment in jail for not more than six months, or in state prison for not more than five years. Gen. St. 1902, § 1254. The criminal court of common pleas has no original jurisdiction of this offense, and the motion of the accused to erase the case from the docket should have been granted. Another decisive objection to the jurisdiction of the trial court is found in section 1446 of the General Statutes of 1902: "No justice of the peace, 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." Possibly the charter of the city of New Haven may except the New Haven city court from the operation of this statute. Charter 1899, § 185. The language used in the charter is not clear, and should, for obvious reasons, be construed, if it reasonably can be, as consistent with the settled policy of the state expressed in section 1446. The case before us does not, however, require a decision of this question. As the court had no jurisdiction of the cause, the other reasons of appeal are immaterial. There is error in the judgment of the criminal court of common pleas. The judgment is reversed, and that court is directed to erase the case from its docket for want of jurisdiction. The other Judges concurred. vested in the trustees at the death of the testator, subject to the life use of the widow. 2. Where testator's will gave his wife an estate for life in all his property, after which general legacies were to be paid by trustees, who were not to receive the trust fund until the final settlement of the estate, such legacies were payable as of the date of the termination of the life estate, in the event of such termination occurring more than one year after the decease of testator. 3. Where testator's will gave his wife a life estate, and provided that on her death the trustees, to whom a residuary estate was given, should pay certain general pecuniary legacies, the division of the residuary trust estate into separate shares should be made at the termination of the widow's life estate. 4. Where testator's will gave his wife a life estate in all his property, and provided that on the termination of that estate the trustees appointed by the will should pay general pecuniary legacies to such grandnephews and grandnieces "as may be living at my death, or may be born thereafter," the will referred only to births occurring between the death of the testator and that of his widow. 5. Gen. St. 1902, § 255, provides that trustees may 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 probate court, so long as, in exercise of reasonable prudence, they may deem it unnecessary to make any change. Held, that where trustees under a will were given two spec ified sums, the income from each of which was to be paid to a certain person for life, with remainder to his heirs, though the property made over to the trustees was not of the kind in which trust funds are ordinarily invested, it was not incumbent on the trustees to sell out the securities in order to raise the sums in cash. Case Reserved from Superior Court, Fairfield County; William T. Elmer, Judge. Action by the trustees under the will of Bronson B. Beardsley for a construction of the will. Case reserved for the advice of the Supreme Court of Errors. Will construed. The material parts of the will were as fol lows: "Third. I hereby devise and bequeath the whole of my residuary estate, both real and personal, to my beloved wife, Mary W. Beardsley, during her life, for her sole use and benefit, and, at her death, I hereby appoint Mrs. Marcia Beardsley, my sister, of Bridgeport, Ct., and Miss Lucinda T. Montgomery, above mentioned, and Clara T. Hathaway-wife of George T. Hathaway, of Bridgeport, Ct., as Trustees for all my residuary estate, and I hereby request that when they deem it necessary-to counsel with Morris P. Beardsley, Esq., of Bridgeport, Ct., or Oswald P. Backus, Esq., of Rome, N. Y., or both, and I do hereby direct that the said Trustees and their successors shall hold and manage and appropriate the said residuary estate in the following manner. * "Fifth. I hereby direct that the said Trustees above named shall pay to Miss Katie Fitzpatrick the sum of Five Hundred Dollars ($500), she having been a faithful domestic in my family for many years." "Sixth. I hereby direct that said Trustees pay from my residuary estate the sum of Twenty-Four Thousand Dollars ($24,000) to the following named objects, respectively." Twelve legatees, mostly charitable corporations, were then named, and there was added: "The above $24,000 to be paid $2,000 each to the above named objects." "Seventh. I hereby direct that the said Trustees pay from my Residuary Estate the sum of Twelve Thousand Dollars ($12,000) to my nephew, Nichols B. Trulock, of Pine Bluff, Arkansas." "Eighth. I hereby direct that the said Trustees pay from my Residuary Estate the sum of Twelve Thousand Dollars ($12,000) to my nephew, J. Burton Trulock, of Pine Bluff, Arkansas." "Ninth. I hereby direct that the said Trustees pay from my Residuary Estate the sum of Twelve Thousand Dollars ($12,000) to my grandniece, Clara T. Hathaway, wife of George T. Hathaway, of Bridgeport, Ct." "Tenth. I hereby give to the said Trustees the sum of Twelve Thousand Dollars ($12,000) to be held in trust for my nephew Marshall S. Trulock of Pine Bluff, Arkansas-the income to be paid to him semi-annually as long as he may live, and at his death the same to be paid to his heirs at law." "Eleventh. I hereby give to the said Trustees the sum of Twelve Thousand Dollars ($12,000) to be held in trust for my nephew James H. Trulock of Pine Bluff, Arkansasthe income to be paid to him semiannually as long as he may live, and at his death the same to be paid to his heirs at law." "Twelfth. I give and bequeath to Miss Lucinda T. Montgomery all my household furniture, pictures, library, bedding, silver and plated ware, jewelry and wearing apparel. Also my horse, carriages, and all thereto belonging, absolutely after the death of my wife, with the request that she shall give to my grandniece (Mrs. Clara T. Hathaway) any of the portraits or other things she may desire." "Thirteenth. I hereby direct that the rest and residue of my estate shall be given in equal shares to each of my grandnieces and grandnephews as may be living at my death, or may be born thereafter-as follows "To those who may already have reached the age of twenty-five, I direct that their shares shall be given to them absolutely. "Fourteenth. The remaining shares I give and bequeath to Miss Marcia Beardsley, Miss Lucinda T. Montgomery and Mrs. Clara T. Hathaway, to be by them held in trust for the other grandnieces and grandnephews until they several reach the ages of twenty-five, when said shares with the accrued interest shall be given to them respectively. If any of them shall die before attaining the age of twenty-five years-leaving issue-I then direct that such issue shall take the share their parent would have had if living to the age of twenty-five years as aforesaid. But if any of my grandnieces and grandnephews shall 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, fn 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 oth ers. 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, more 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, § 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 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. That 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. (76 Conn. 522) LOOMER v. LOOMER et al. WILLS-CONSTRUCTION-INTENT OF TESTATOR 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 $50,000 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 vest 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 4. See Perpetuities, vol. 39, Cent. Dig. § 50. |
