Averill v. Lewis

138 A. 815, 106 Conn. 582

• Court: Supreme Court of Connecticut
• Decided: October 5, 1927
• Status: Published

Opinions

Haines, J.

The appeals from the Court of Probate are somewhat restricted in their recitals. The parties in argument and brief agree, however, upon certain facts which make them more readily understood, and which are as follows: The testatrices, Elizabeth J. Fitch and Mary L. Fitch, were sisters. Each left a will devising and bequeathing all the residue of her estate after the payment of debts and other proper charges, to her sister. “All the rest, residue and remainder of my estate; of whatever kind or nature and wheresoever situated, to my . . . sister ... to have and to hold the same unto her and her heirs forever.” (Article Second.) “If my said sister shall not survive me, then in such case and event, I dispose of my estate as hereinafter . . . provided.” (Article Third.) Then follow provisions for gifts of money and various articles to numerous beneficiaries. Finally, in the Twelfth Article, provision was made for the disposition of the residue, “subject to the contingency . . . that my sister should not be living at the time of my decease.” This disposition, set out at length, designates certain persons as trustees, and provides a trust for the establishment and maintenance of “a free Rest for white, Protestant, female teachers, who may be dependent upon their own labor for support, and residing in the County of Fairfield and State of Connecticut; such Rest to be known as 'The Bayview Rest,’ to be managed and controlled solely by said trustees, under such reasonable rules and regulations as they may from time to time prescribe.”

Elizabeth predeceased Mary, with the result, under the provisions of the will of Elizabeth—that the residue of her estate became the absolute and sole property of Mary, and those alternative provisions of Elizabeth’s will making various gifts and creating the trust fund, never became operative. They are of no more effect than if they had never been written. To the date of her own death, therefore, Mary was the sole and unqualified owner of the residue of the estate of Elizabeth. Mary having since also deceased, the trust provision under her will became operative. The Court of Probate accepted the final accounts of the administratrix c. t. a. on each estate, and from these decrees the present appellants, one hundred and ten in number, took their two appeals. These are identical in character, were heard together in the Superior Court, and are here presented and discussed.

The appeals addressed to the Court of Probate for the district of Bridgeport, aver that these one hundred and ten appellants “are white, Protestant Female Teachers, dependent upon their own labor for support, and reside in the County of Fairfield and State of Connecticut, and as such are beneficiaries interested in and concerned with the conduct of the administration of said estate, and the distribution and application of the assets thereof to the purposes set forth in the will of the testatrix,” and that “the subscribers are aggrieved by said order and decree of this court.”

To each appeal the appellee filed a pleading entitled “Plea in Abatement and Motion to Erase from the Docket,” alleging, “(1) It does not appear that the appellants are persons aggrieved, (2) It does appear that the appellants are not persons aggrieved,” and “(3) There was no right of appeal by the appellants from the order of the Probate Court, District of Bridgeport in said County of Fairfield, made on November 18, 1926.”

The appellants filed an answer, denying the allegations of the plea and motion. This was not required, since no new facts were alleged. The Superior Court sustained the motion, the only effect of which was to hold that the appellants were not pecuniarily interested in the estates, were not aggrieved, and so had no right of appeal. The present appeal now presents these questions for our consideration.

We first examine the appeal on the estate of Eliza beth. It is clear that, being the sole residuary legatee, Mary, during her life, was the only person pecuniarily interested in the accounting of the estate of Elizabeth, and thus the only person who had the right of appeal from the decree of the Court of Probate thereon.. If she were still living, the present appellants could obviously claim no pecuniary interest in the estate and could not appeal from the probate' decrees thereon. If they now have such interest with right of appeal, it has 'arisen as a matter of law by reason of the provisions of the will of Mary, which alone created this trust fund, the trust provisions of Elizabeth’s will never having been operative.

Upon the death of Mary, her estate by its proper representative—executor or administrator—had the same pecuniary interest in the estate of Elizabeth and the same right of appeal that Mary had when living. If we assume, for the purposes of the argument, that these appellants are direct beneficiaries under the will of Mary, then they have a pecuniary interest in the estate of Mary, within the meaning of the statute, and can appeal from decrees of the Court of. Probate made in relation thereto. Staniford v. Hide, 1 Root, 263, 264; Fairweather v. Curtiss, 2 Root, 32, 33; English v. Smith, 13 Conn. 220; Saunders v. Denison, 20 Conn. 521; American Board, etc., Appeal, 27 Conn. 343; Dunn's Appeal, 81 Conn. 127, 132, 70 Atl. 703.

If such beneficiaries of Mary’s estate have a right to appeal from probate decrees entered upon an estate in which Mary’s estate has an interest, the same reasoning would give a right by reason of interest in any preceding estate from which Mary’s estate had ultimately benefited, for it could be argued that the diminution of any such estate during the indefinite, past, had ultimately diminished the residue of the present estate which is coming to the appellant. The right of appeal cannot be so extended. So far as we are aware, the beneficiary’s right of appeal has always been limited to the estate in which the beneficiary has a direct pecuniary interest.

In a case in this court decided in 1877, it was urged that an execution creditor taking land bought from an heir of an estate could appeal from a probate decree upon that estate, it being shown that that decree had affected the value of the land in the hands of the taker. While it was not necessary to answer the question in that case, we did indicate doubt whether the taker had such an interest as entitled him to appeal. Clarkson v. Beardsley, 45 Conn. 196, 198.

We are constrained to hold that the right of appeal under General Statutes, §5071, is limited to those decrees upon the particular estate in which the appellants show a direct pecuniary interest. Beard’s Appeal, 64 Conn. 526, 533, 30 Atl. 775.

The appellants have no such interest in the estate of Elizabeth. To hold otherwise would be to concede to every succeeding owner of this property for all time, a direct pecuniary interest within the meaning of the statute, and we hold that such was not its purpose or intent. Moreover, the will of Mary L. Fitch spoke only at her death. There was no trust fund until that time. The present appellants cannot therefore claim to be aggrieved by the treatment of a trust fund which was not in existence at the time the grievance complained of occurred. The funds of Elizabeth were legally and finally disposed of before the trust fund was established, and therefore before any rights of the appellants as beneficiaries thereunder came into existence.

We have thus far assumed that these appellants were beneficiaries under the will of Mary, with the same rights of appeal by reason of interest that are given to heirs and direct beneficiaries, and recognized in the cases which we have cited, but we do not so regard them, for reasons which we shall state when considering the appeal on the estate of Mary L. Fitch.

There is at least one further reason why the appeal on the estate of Elizabeth cannot be maintained. ' The application addressed to the Court of Probate, after describing the appellants as white, Protestant, female teachers, etc., avers only that they “are benéficiaries interested in and concerned with the conduct of the •administration of said estate” of Elizabeth, and that they “are aggrieved by said order and decree.”

The statute provides that “the interest of the appellant shall be stated in the motion for appeal, unless such interest appears on the face of the proceedings and records of such Court of Probate.” General Statutes, §5075; Saunders v. Denison, 20 Conn. 521; Swan v. Wheeler, 4 Day, 137; Deming’s Appeal, 34 Conn. 201, 203; Dickerson’s Appeal, 55 Conn. 223, 229, 10 Atl. 194, 15 id. 99; Campbell’s Appeal, 64 Conn. 277, 292, 29 Atl. 494.

To assert that the appellants are beneficiaries and interested, is to state a legal conclusion only, and whether drawn from the application or from the records of the court, remains a legal conclusion. That is not sufficient to show an interest within the meaning of the statute. An allegation that the appellant is aggrieved “both as an heir at law and next of kin,” is a mere averment of a legal conclusion. It being found he was neither next of kin nor heir at law “nor representative of any party in interest,” the case was erased from the docket. Campbell’s Appeal, 64 Conn. 277, 292, 29 Atl. 494.

It will be seen from the application that these one hundred and ten appellants do not apply as “representatives of any party in interest.” They aver an individual interest and the motion to erase is directed to that statement and denies their interest as “persons,” though the reasons of appeal, dated ten days after the motion to erase, refer to the appellants as “representatives of the residuary beneficiaries” arid “representatives of the ultimate recipients of the residue.” All these defects were seasonably taken advantage of by the plea and motion to erase, and the specifications in the reasons of appeal could not avail to supply their omission. Norton’s Appeal, 46 Conn. 527, 528.

The appeal on the estate of Elizabeth J. Fitch cannot be sustained, and the motion to erase was properly granted.

Upon the appeal on the estate of Mary L. Fitch, some of the considerations we have expressed have the same bearing.

The failure to sufficiently allege the interest which the appellants claim or to allege the representative capacity in which they later claim to act are defects of the same character as in the appeal we have been considering; and they require that the action of the Superior Court in granting the plea and motion to erase, should be sustained.

Whether the “class” which the appellants now claim to represent has the necessary “interest” to permit an appeal on the estate of Mary, presents a broader question. Though in our view of the application to the Court of Probate the question becomes somewhat academic, its general importance and the fullness with which it has been discussed by counsel justifies a brief consideration of it.

This trust under the will of Mary L. Fitch is a “public charitable trust,” a “gift to charitable uses,” and we do not understand counsel on either side to question this. Tappan’s Appeal, 52 Conn. 412; Camp v. Crocker’s Admr., 54 Conn. 21, 5 Atl. 558; Strong’s Appeal, 68 Conn. 527, 530, 37 Atl. 395. Such trusts were invalid at common law, for the reason that the cestuis que trustent were unknown and could only be determined in the future; there was no defined cestui, but an unascertained portion of the general public was to enjoy the benefits. Adye v. Smith, 44 Conn. 60, 67.

“It is an essential feature of a public charity that the beneficiaries are uncertain—a class of persons described in some general language, often fluctuating and changing in their individual members. If all the recipients of a charity could be designated with certainty at the time of its creation, there would be no necessity for a law of charitable uses different from that which governs all other trusts.” Zollmann on American Law of Charities (1924) p. 235. Such trusts then are purely creatures of statute. Desiring to foster and encourage charitable uses, as in England and many other States in this country, this State enacted a statute in 1684, which first appeared in the Revision of 1702, sanctioning and sustaining such gifts. This is now General Statutes, §5081.

In the public charitable trust, the cestuis que trustent are indefinite and cannot be named. The designation is general and not specific. If the cestuis que trustent were specifically named, there would be no need of the statute. The fact that, in the present case, no one can say specifically who the beneficiary or beneficiaries of the fund are or will be, marks the distinction. For an indefinite time, if not for all time, certain members of a class may, under the prescribed conditions and at the discretion of the trustees, enjoy the benefits of this trust. Who or how many of that class now exist and how many are yet unborn, there is no possibility of determining. The beneficiaries of this trust fund will be an uncertain number of the class, now living, and others yet to be born selected from the general public within certain territorial, occupational, racial and other limits.

To hold that in the present case “all the recipients of this charity” can be “designated with certainty” and can now come into court and claim its benefits, is to deny that it is a public charitable trust under the statute. Not only is it impossible to now determine who are all the recipients of this charity, but it is equally impossible to show that any one of these one hundred and ten appellants ever will become a recipient of it. This trust clearly falls within the description of our last quotation: “The beneficiaries are uncertain—a class of persons described in . . . general language, . . . fluctuating and changing in their individual members.”

Since the recipients of this charity are now unascertainable members of the general public, the beneficiary class should be represented and their interests protected by the trustees, or, upon their failure to act, then by the public attorney—formerly the State’s Attorney and now the Attorney General. Healy v. Loomis Institute, 102 Conn. 410, 422, 128 Atl. 774.

“The law has provided a suitable officer to represent those entitled to the beneficial interests in a public charity. It has not left it to individuals to assume this duty, or even to the court to select a person for its performance.” Burbank v. Burbank, 152 Mass. 254, 256, 25 N. E. 427; Lakatong Lodge v. Franklin Board of Education, 84 N. J. Eq. 112, 92 Atl. 870; Northwestern University v. Wesley Memorial Hospital, 290 Ill. 205, 125 N. E. 13; People ex rel. Ellert v. Cogswell, 113 Cal. 129, 45 Pac. 270; 2 Perry on Trusts (6th Ed.) p. 1214; Cleaveland, Hewitt & Clark, Probate Practice, p. 758. “England makes it the duty of her Attorney General to institute all proceedings necessary to secure the due application and administration of charitable endowments. A similar function has been cast upon the Attorney Generals of many of our States. I believe that this should be the .practice in all, and that the French law might well be followed, by requiring the service of process upon the Attorney General in every suit affecting either the validity or the administration of a charitable gift.” Justice Baldwin, in Yale Law Journal, Vol. 4, pp. 134, 135.

The present statute provides that “the Attorney General . . . shall represent the public interest in the protection of any gifts, legacies or devises intended for public or charitable purposes.” This is mandatory and specific. General Statutes, §170.

The appellants claim a direct analogy between themselves and those in Dailey v. New Haven, 60 Conn. 314, 325, 22 Atl. 945, where we said: “The attorney for the State should apply to the Probate Court for the appointment of a trustee or trustees. In case of his failure so to do, such application may be made by any individual of the specified class of beneficiaries.” We do not perceive the analogy. That proceeding had nothing whatever to do with the defense or enforcement of any rights of beneficiaries, but only the naming of a trustee to administer the trust. Even so, we held it was the primary duty of the State’s Attorney to act, and only upon his neglect or failure, that “any individual of the specified class” might do so. It was purely an administrative matter, adjudicating no rights. Not only so, but the present appeal is not predicated upon the refusal or neglect of the Attorney General to act, but is an independent attempt of certain persons—who cannot even be shown to have a beneficial interest themselves—to assume the per formance of a duty which devolves upon the Attorney General by statute.

If it be said that the question of the proper party to bring this appeal, was not made, specifically, one of the grounds of the motion to erase, a sufficient answer is that it is necessarily involved in the conclusion that this is a public charitable trust, and he, and not these individual appellants, must represent the beneficial interests thereunder. It thus enforces one of the grounds of the motion that these appellants are not entitled on the face of the record to appeal.

If any of these one hundred and ten appellants were held to have such an interest as would permit them thus to intervene on their own motion to protect a claimed right under this fund, ignoring the trustees, who are given full control of the fund by the will, and the Attorney General, whose statutory duty it is to act, then any other person who claims to be of the specified class has, and will for all time have, the same right. Public policy alone would forbid our sanction of a course bringing such endless confusion and uncertainty as would thus result. 'Orderly procedure and the clear purpose of the statute requires that, upon the failure of the trustees to act, such an appeal should be brought by the Attorney General, that he is then a necessary party to the proceeding, and that the interest of these appellants is not shown to be such as entitles them to appeal. The motion to erase was properly granted.

There is no error.

In this opinion Maltbie and Banks, Js., concurred.