Colonial Trust Co. v. Brown

135 A. 555, 105 Conn. 261, 1926 Conn. LEXIS 29

• Court: Supreme Court of Connecticut
• Decided: December 16, 1926
• Status: Published

Opinions

Maltbie, J.

There is nothing in the terms of the will to suggest that the testator intended that the ascertainment of the “heirs of the blood of my father,” to whom, in the twelfth article of the will, he gave the residue of the estate, should be postponed until the termination of the trust. That being so, the remainder interest in the trust estate vested at his death in those who then came within that description, and, though their enjoyment would have to be postponed, they had an estate which they might alienate or devise. Allen v. Almy, 87 Conn. 517, 523, 89 Atl. 205; Close v. Benham, 97 Conn. 102, 104, 115 Atl. 626; Stamford Trust Co. v. Lockwood, 98 Conn. 337, 348, 119 Atl. 218. The “heirs of the blood of my father” were then Buckingham P. Merriman and Frederick J. Brown. Nor are they to be regarded as impliedly excluded, under the doctrine of Gross v. Hartford-Con necticut Trust Co., 100 Conn. 332, 123 Atl. 907, because the will also provides annuities for them; for these annuities represent only a part of the life interests created, and the testator could hardly have expected that the remainder interests would take effect in enjoyment upon the death of either of them. Newell v. Beecher, 98 Conn. 263, 272, 119 Atl. 223; Thomas v. Castle, 76 Conn. 447, 452, 56 Atl. 854. It is not improbable that the testator intended the re mainder interests to vest in right in one or more of the annuitants, if they were in fact the “heirs of the blood of my father.” The remainder interest is now vested in Merriman and in Lena M. Brown, the personal representative and sole legatee and devisee of Frederick J. Brown.

The annuities provided in the fifth, sixth and seventh articles for the beneficiaries named therein vested immediately upon the testator’s death. Each of the “surviving children” for whom annuities are provided in the fifth and sixth' articles must obviously be in being at the death of his parent, and the gift to him must vest immediately upon that death. All the annuities must vest, then, within a life or lives in being and twenty-one years, and none of them are, therefore, obnoxious to the rule against perpetuities. Their significance in our present inquiry lies in the fact that they fix as the duration of the trust not only the period of the lives of the annuitants in being at his death, but also the further period of the lives of the children who may be born to the named annuitants after his death, that is, a period of possibly seventy or eighty years, or even longer.

It is vigorously argued that the primary and chief intent of the testator in his provisions for the administration of the trust was to assure the payment of the annuities he provided, and that, when that object can be realized by reason of an accumulation of personal property in the hands of the trustee sufficient to produce the necessary income, the real estate should be freed of the trust. No doubt a chief end the testator had in mind was to make sure that the annuities would be paid; but one cannot read the will without realizing also that he intended to accomplish that end by providing for the retention of the real estate in the trust as the primary source of the income with which to pay them. Its provisions are not set forth in a very clear way, but the intent is plain. In the fourth article he places in the trust the real estate as well as the personal property, and he provides that the trustee shall maintain an office in the Exchange Place property and expresses the wish that Blanche M. Pierce be retained as its head “during her lifetime”; in the ninth article he sets apart the Exchange Place property and the Homestead to be retained by the trustee, and then provides for the sale of the other real estate he owns; in the tenth article, he gives the trustee power to invest “the income from said estate and the avails arising from the sales of real estate,” with a limitation as to the character of the investments which may be made; and in the eleventh article, he directs the trustee to pay off incumbrances upon the Exchange Place property and the Homestead “so fast as it shall have any unexpended funds in its hands, or to use the funds of said estate as it may deem necessary and proper for the improvement and construction” of the properties, giving it “full power to use its discretion whether it will first remove the said encumbrances on said property or build upon or improve the same.” Clearly the dominating thought here was the retention and improvement of these two properties and to that end he devotes the other funds of the estate, the provisions of the tenth article, when considered in connection with the broad powers given the trustee to invest and reinvest in the fourth article, being inserted merely to make effectual the limitations therein stated upon the character of such investments as the trustee may have occasion to make. For the three years before his death, the net income of the property was only $20,000 a year, and this, in “connection with the provision in the eighth article for the proportionate abatement of the annuities should the income of the trust be insufficient to pay them all in full, indicates that the testator had no expectation of such an excess of income as could not reasonably be used in one of the ways he specifies. To continue the personal property in the trust and to release the real estate from its operation is not merely to put into the mind of the testator an intent of which the will gives no indication, but it is to run counter to the intent which it fairly expresses.

The remaindermen make an alternative claim, that any income from the fund not needed to pay the annuities shall from time to time be distributed to them or to those who shall come to stand in their shoes by assignment or descent. This claim, however, overlooks the provisions the testator has himself made for the use of income not needed for the annuities, which we have just pointed out. The first duty of the trustee is to pay the annuities, but close after it follows the duty to use the other funds in its possession to carry out the provisions of the eleventh article. This requires of the trustee that, as long as it holds the properties in question, whenever an excess of personal property accumulates in its hands beyond such a contingent fund as good business management requires it to hold, it shall determine whether to apply it to discharge the mortgage upon the Exchange Place property or to use it for immediate improvements or let it accumulate to a reasonable extent against some contemplated larger plan; but it does not permit the accumulation of a large excess in the absence of a reasonable anticipation of its use in the improvement of the properties. In determining whether to make improvements to the properties, the trustee must, of course, be governed by the requirements of ordinarily prudent business management and should not go beyond them; McClure v. Middletown Trust Co., 95 Conn. 148, 153, 110 Atl. 238; to the extent to which the funds of the estate cannot be applied to such a use conformably to that standard, the income must go to discharge any remaining incumbrances upon the Exchange Place property. Only if these incumbrances should ultimately be discharged, and no use be open for the funds of the estate in the reasonable improvement of the properties, would there be an excess of income beyond the amount needed to carry out the express will of the testator.

In determining the disposition of such an excess of income, should it materialize, we must first search the will to see if we can find there disclosed any intent of the testator as to it. Lyman v. Parsons, 26 Conn. 493, 519; Andrews v. Rice, 53 Conn. 566, 5 Atl. 823; Townsend v. Wilson, 77 Conn. 411, 59 Atl. 417; Holcombe v. Spencer, 82 Conn. 532, 74 Atl. 904; Pierce v. Root, 86 Conn. 90, 84 Atl. 295; Bridgeport Trust Co. v. Marsh, 87 Conn. 384, 397, 87 Atl. 865. We ought not, however, lightly to adopt a construction which will very likely result in an accumulation of income over a period of many years, in the aggregate amounting to an immense sum, accompanied, as it must be, with a denial of all the enjoyment of it to those in whom the beneficial interest is vested, and with an ultimate distribution to strangers to the blood of testator’s father or to descéndants yet unborn. Scrutinizing the will from this standpoint, there is found no least indication of a desire on the part of the testator that excess income should accumulate for the benefit of those who will ultimately receive the fund, and on the other hand, the provisions of the eleventh article show a purpose that there should be no such accumulation; for it contains directions to be carried out in the event that the trustee has “any unexpended funds in its hands.” The testator evidently did not contemplate that there would be any excess funds which might not be exhausted in one of the ways he specifies in that article, but, had he done so, there is every reason to believe that he would have provided against its accumulation. Now to construe the will as authorizing such an accumulation would be to go far beyond any purpose which could properly be ascribed to him and to run counter to his revealed intent as to the use of any excess funds in the administration of the trust. Nor can we read into the will a provision that the excess income shall be paid as it accrues to those to whom the residue is given, for that would be to make a will for the testator. We must construe the will so as not to do violence to his intent as there revealed. We therefore hold that since the testator failed to dispose of the right to the enjoyment of the income of the estate in excess of that reasonably needed for the purposes specified by him, a right to receive that excess as it may accrue from time to time vested at his death in the “heirs of the blood” of testator’s father, as a part of the residue. Hoadley v. Beardsley, 89 Conn. 270, 282, 93 Atl. 535.

The remaindermen also claim that, despite the prohibition in the ninth article, the Exchange Place property and the Homestead may be sold by the trustee. That article provides that “the said trustee is hereby forbidden to sell or dispose of” the Exchange Place property and the Homestead. The remaindermen contend that the concluding words of this article, “within five years,” can be applied as a limitation upon that prohibition; but that can be done only by doing such violence to the laws of syntax as would require for justification some further expression of such an intent on the part of the testator, and there is none. The failure of the will otherwise to limit the duration of the prohibition, to which they refer, is not of moment, for having denied the power of sale to the “trustee” it was wholly unnecessary to add, “during the continuance of the trust,” or the like. In the absence of other limitations upon the power of sale, the provision in the fourth article, “except as limited and provided in the next clause of this my will,” undoubtedly refers to that contained in the ninth article, although by some rearrangement of the subject-matter in the composition of the document, or otherwise, the two clauses became separated; so that no support can be found there for an interpretation which would narrow the scope of the prohibition in question. On the other hand, as we have pointed out, one dominating thought of the testator was to retain the Exchange Place property and the Homestead as the source of the income from which the annuities were to be paid. We are unable to read the ninth article as expressing other than an absolute prohibition against the sale of these properties. It is quite possible that that article does not represent the real or complete mind of the testator, but to limit the prohibition against the sale of the properties in such a way as the remaindermen suggest would be to yield to mere surmise or conjecture.

One of the remaindermen, however, attacks the provision, if it is not so limited, as constituting an illegal and void restraint upon alienation, and he cites on his brief numerous cases in support of that contention. A few of these, upon examination, are seen to be illustrations of the doctrine which forbids a testator to postpone the transfer of the principal of a devise, with a direction that meanwhile the income only be paid to the devisee, where no one except the latter has an interest in the property; but that doctrine has been repudiated in this State; DeLadson v. Crawford, 93 Conn. 402, 106 Atl. 326; and would not be applicable in this case in any event because there is not the requisite identity of persons between the life beneficiaries and those entitled to the remainder interest. Most of the cases cited in the brief fall, however, within the established principle that one may not grant or devise to another an estate with fixed legal incidents and at the same time curtail him in the enjoyment of those incidents, as where one devises an estate in fee and adds a subsequent provision against the alienation of the property. Tarrant v. Backus, 63 Conn. 277, 285, 28 Atl. 46; Burr v. Tierney, 99 Conn. 647, 653, 122 Atl. 454; Potter v. Couch, 141 U. S. 296, 315, 11 Sup. Ct. 1005; De Peyster v. Michael, 6 N. Y. 467; Steib v. Whitehead, 111 Ill. 247, 251; Wool v. Fleetwood, 136 N. C. 460, 464, 48 S. E. 785. The immediate reason generally given to support that principle is the direct repugnancy between the estate granted and the limitation intended, and that reason has of course no application to a devise in trust, for there, whatever be the legal estate devised, in equity that estate is of necessity limited and qualified to accomplish the purposes of the trust. Stanley v. Colt, 72 U. S. (5 Wall.) 119, 163. There is, indeed, a clear recognition of the power of the creator of a trust to restrain the alienation of real estate forming a part of it in the statute of this State which grants to probate courts the right to order the sale or mortgage of real estate devised in trust, for that power is expressly limited by the words, “provided, such sale or mortgage is not prohibited by said will.” General Statutes, § 4902.

Here it is necessary to point out that we are not concerned with the validity of the trust itself, that is, the aggregate of the rights in the fund of which it consists, however the component parts of that fund may vary, by purchase and sale, investment and reinvestment, and the like. If the beneficial interests under the trust are validly created, the trust is valid and its duration is limited only by the needs of the purpose it is created to accomplish. Loomer v. Loomer, 76 Conn. 522, 527, 57 Atl. 167; note, 49 Amer. St. Rep. 129; and see Connecticut Trust & Safe Deposit Co. v. Hollister, 74 Conn. 228, 233, 50 Atl. 750. Where, as in the instant case, all estates, legal and equitable, vest within the period fixed by the rule against perpetuities, unquestionably the trust is valid, and will continue until the death of the longest living annuitant. But the testator attempted to so control the devolution of his property that the pieces of real estate in question must remain in the trust until the expiration of the annuity which lasts longest, and we have really to determine how long under the law such a restraint upon its alienation may continue. Kales on Estates, etc. (2d Ed.) § 658. The effect would be the same if there had been an express gift over, of the two pieces of real estate in question to the “heirs of the blood of my father,” to take effect at the expiration of the longest lasting annuity.

There are undoubtedly principles of public policy which cause courts to scrutinize with care efforts to impose restraints upon the alienation of property. The refusal to sanction such restraints has often been attributed to the rule against perpetuities and in fact legislation in many of the States, adopted in supposed modification of that rule, in terms forbids restraints upon alienation. Gray on Perpetuities (3d Ed.) § 735 et seq.; 30 Cyc. 1501 and 1518 et seq. The rule against perpetuities and that against restraints upon alienation are in reality entirely distinct, the former being concerned only with the vesting of estates in right, and the latter with the limitation which may be imposed upon the enjoyment of the property. Gray on Perpetuities (3d Ed.) §§ 121 f, 278 d; Kales on Estates, etc. (2d Ed.) § 658; Johnston’s Estate, 185 Pa. St. 179, 184, 39 Atl. 879; Bancroft v. Maine State Sanatorium Asso., 119 Me. 56, 109 Atl. 585; Michigan Trust Co. v. Baker, 226 Mich. 72, 196 N.W. 976. But by analogy the same rule has been adopted for determining the length of time during which the alienation of lands may be lawfully restrained as is used in determining the period within which an estate must vest in order to be valid. Thus, Knowlton, J., in Winsor v. Mills, 157 Mass. 362, 364, 32 N.E. 352, says that where a restraint upon alienation is “held permissible for a limited time, it would be deemed unreasonable, and contrary to the policy of the law, to allow it to continue beyond the period fixed by the rule against perpetuities.” Lewin, in his work on “Trusts,” 12th Ed., page 95, says: “A settlor is permitted (by analogy to the duration of a regular’entail upon a common law conveyance) to fetter the alienation of property for a-life or lives in being and twenty-one years.” The statutes in the several States expressly forbidding restraints upon alienation, which may be taken as representing the public policy of those States, are held to apply to property granted or devised in trust; Everitt v. Everitt, 29 N.Y. 39, 71; Congdon v. Congdon, 160 Minn. 343, 200 N.W. 76; Methodist Church of Newark v. Clark, 41 Mich. 730, 3 N.W. 207; Estate of Hendy, 118 Cal. 656, 50 Pac. 753; Penfield v. Tower, 1 N.D. 216, 46 N.W. 413; De Wolf v. Lawson, 61 Wis. 469, 21 N. W. 615; and those statutes in general restrict the permissible duration of such restraints to a period measured by a life or lives in being and twenty-one years. Gray on Perpetuities (3d Ed.) p. 557 et seq. In England, the restraint upon alienation of an absolute equitable interest has been permitted as an exception to the general rule where it was imposed for the benefit of a married woman to be effective during coverture, and the courts have fixed as the possible duration of such a trust a life in being and twenty-one years. Gray, in his Perpetuities (3d Ed.) § 121 i, speaking of the necessary limitations upon those trusts where the transfer of the principal to the beneficiary is postponed pending a period in which he is to get the income only, suggests that it is perhaps likely that the same period will be adopted. In Hoadley v. Beardsley, 89 Conn. 270, 279, 93 Atl. 535, we recognized the doctrine that a trust for accumulation must be strictly confined within a life or lives in being and twenty-one years, and we pointed out that if the measure of it is not based on a life or lives, the permissible duration is twenty-one years.

In view of these authorities and analogies, we can only conclude that a trust may not in any event be so created as to prevent the alienation of the property comprising it for a period which might exceed the duration of a life or lives in being and twenty-one years. By that test, the restraint which the testator sought to impose in the ninth article of his will is necessarily invalid, for it was to extend throughout the duration of the trust, and that in turn was to continue throughout the lives of persons in being at his death, to whom life annuities were given, and also during the lifetime of their children, who might be born after his death, and who would succeed to the annuities. We are not then called upon to determine whether the peculiar circumstances of a particular case might not make a restraint upon the alienation of property held in trust for a shorter period so against public interest and welfare as to require it to be held invalid.

The effect of the invalidity of the ninth article in these respects depends upon the intent and plan of the testator so far as discoverable from the terms of the will, read in the light of the surrounding circumstances He certainly had in mind certain restrictions and directions as to the ways in which the Exchange Place property and the Homestead should be handled by the trustee, but those matters were an incident to, not a reason for, their continuance in the trust; the “wish” that Blanche M. Pierce and the “request” that Pedro Delgazo, be continued in. the employment of the trustee, which are stated in the fourth article, are couched in language which, particularly when contrasted with the imperative nature of the testator’s other instructions, can only be regarded as precatory; Loomis Institute v. Healy, 98 Conn. 102, 114, 119 Atl. 31; Hughes v. Fitzgerald, 78 Conn. 4, 7, 60 Atl. 694; and an intent to continue the real estate in the possession of the trustee simply to secure their performance could hardly be inferred. That there was on his part & desire to withhold the property from Merriman and Brown as an end in itself is improbable, because of his cordial relations with them and the entire absence of anything to suggest their untrustworthiness in any' particular, and because the postponement of the enjoyment of the property until the death of the last surviving annuitant would almost to a certainty affect not. only them but also those who might succeed to their rights. That there was in the mind of the testator a definite desire to pass the specific property on in the line of descent from his father at the end of the trust would seem at first blush not unlikely; yet such an intent can hardly be reconciled with the language of the will-; for, instead of a specific devise over of the property, or a direction to the trustee to transfer, it, it is left to pass by a general residuary clause. State Bank & Trust Co. v. Nolan, 103 Conn. 308, 328, 130 Atl. 483. On the other hand, the creation of the trust is expressly stated in the fourth article to be “for the purpose of raising all such sums of money as shall be required for the payment of the trusts, an nuities, charges and legacies hereby created, given, and bequeathed.” The directions in the will as to the administration of the trust show the testator to have been a man of a fixed and somewhat peculiar mind in the management of property, and we cannot assume in him any purpose other than such as finds support in the will itself. It must be held that the testator’s main intent in the provisions against the sale of the properties was to continue them as the source of the income necessary for the payment of the annuities. That being so, the invalidity of those prohibitions in no way affects any general or dominant plan he intended to effect, and the beneficial gifts, which it was certainly his purpose in all events to make, remain unaffected. Tarrant v. Backus, 63 Conn. 277, 284, 28 Atl. 46; Johnson v. Preston, 226 Ill. 447, 458, 80 N.E. 1001; Manice v. Manice, 43 N.Y. 303; Whitman’s Estate, 248 Pa. St. 285, 93 Atl. 1062. The prohibition against the sale of the Exchange Place property and the Homestead being invalid, the exception in the fourth article from the general power of sale given therein to the trustee fails, at least as to them, and the trustee has full power to sell and convey these properties. Bates v. Spooner, 75 Conn. 501, 508, 54 Atl. 305.

Should both the properties be sold, the provisions of the will for the use of the income beyond that needed to pay the annuities would no longer be operative, and the trustee would in all probability be in possession of a fund very much larger than that needed for them. In such a contingency the considerations which we have advanced with reference to an excess of income beyond that required to carry out the purposes specified in the will would in the main be applicable. Certainly there is nothing in the will which points to an intent on the part of the testator to have the trustee hold until the death of the last annuitant a fund in amount far in excess of that needed to provide sufficient income to pay the annuities, and in the absence of such an intent, that result cannot follow. In such a situation, it is well settled that the proper course to adopt is to set aside for the trust so much of the fund as will assure the production of income sufficient to pay the annuities, and distribute the balance of the principal as provided in the residuary clause of the will. Bristol v. Bristol, 53 Conn. 242, 258, 5 Atl. 687; Beers v. Narramore, 61 Conn. 13, 22 Atl. 1061; Sears v. Hardy, 120 Mass. 524. The amount to be retained by the trustee should be ample to assure the production of income sufficient to pay the annuities, and must be determined by it subject to the control which the Court of Probate will exercise in the approval of the trustee’s accounts. Wordin’s Appeal, 64 Conn. 40, 51, 29 Atl. 238; Sterling v. Ives, 78 Conn. 498, 512, 62 Atl. 948. Should the fund retained produce an income in excess of that needed to pay the annuities, that excess must be paid from time to time, as we have already indicated, to the beneficiaries under the residuary clause or those who may come to stand in their shoes.

We are asked to advise whether the provision in the fourth article, restricting leases of the property to one year and forbidding 'any promises of longer leases, and that in the eleventh article, directing that no new buildings placed upon the Exchange Place property and the Homestead shall exceed three stories in height, are binding upon the trustee. In Holmes v. Connecticut Trust & Safe Deposit Co., 92 Conn. 507, 514, 103 Atl. 640, in holding invalid certain conditions attached to the enjoyment of a trust estate by the cestui que trust, as fraught with danger to the proper conduct of the marital relationship, we said; “As a general rule, a testator has the right to impose such conditions as he pleases upon a beneficiary as conditions precedent to the vesting of an estate in him, or to the enjoyment of a trust estate by him as cestui que trust. He may not, however, impose one that is uncertain, unlawful or opposed to public policy.” So it may be said of the directions and restrictions which a testator may impose upon the management of property which he places in a trust, that they are obligatory upon the trustee unless they are uncertain, unlawful or opposed to public policy. Lewin on Trusts (12th Ed.) 90. In the instant case, the length of time during which the testator directed that the property should remain in the trust and the complete uncertainty as to the individuals to whom it would ultimately go, preclude any thought of an intent on his part to forbid the cumbering of the property by long leases or the burdening of it with large buildings, lest the beneficiaries be embarrassed in the development of it along such lines as they might themselves prefer. The only other purpose which can reasonably be attributed to him is to compel the trustee to follow his own peculiar ideas as to the proper and advantageous way to manage such properties. That the restrictions are opposed to the interests of the beneficiaries of the trust, that they are imprudent and unwise, is made clear by the statement of agreed facts, but that is not all, for their effect is not confined to the beneficiaries. The Exchange Place property is located at a corner of the public square in the very center of the city of Waterbury, in the heart of the financial and retail business district, is as valuable as any land in -the city, and is most favorably adapted for a large building containing stores and offices, and the Homestead is located in a region of changing character, so that its most available use cannot now be determined. To impress the restric tions in question upon these properties, as the statement of agreed facts makes clear, makes it impossible to obtain from them proper income return or to secure the most desirable and stable class of tenants, requires for the maintenance of the buildings a proportion of income greatly in excess of that usual in the case of such properties, and will be likely to preclude their proper development and natural use. \The effect of such conditions cannot but react disadvantageously upon neighboring properties, and to continue them, as the testator intended, for perhaps seventy-five years or even more, would carry a serious threat against the proper growth and development of the parts of the city in which the lands in question are situated. The restrictions militate too strongly against the interests of the beneficiaries and the public welfare to be sustained, particularly when it is remembered that they are designed to benefit no one, and are harmful to all persons interested, and we hold them invalid as against public policy. Mitchell v. Leavitt, 30 Conn. 587, 590; Egerton v. Earl Brownlow, 4 H.L. Cas. 1, 143, 148, 150.

The remaining matters as to which our advice is asked may be quickly disposed of. The powers given the trustee to sell, lease, and convey the real estate in its hands do not give it the right to place mortgages upon the property; should the trustee deem it for the best interests of the beneficiaries under the trust to do so, the statute permits it to apply to the Court of Probate for authority. Townsend v. Wilson, 77 Conn. 411, 416, 59 Atl. 417; General Statutes, § 4902. The five-year limitation in the ninth article upon the power of the trustee therein given to sell real estate other than the Exchange Place property and the Homestead, ended the testamentary authority of the trustee at the expiration of that time, but that would not prevent the Court of Probate, under the provisions of § 4902 of the General Statutes, already referred to, from ordering a sale in a proper case; it is far more probable that the testator intended merely to limit the untrammeled discretion of the trustee to sell of its own accord, than that he desired these lands to remain in the trust until the ultimate distribution of the property. See Gilman v. Gilman, 99 Conn. 598, 607, 122 Atl. 386. The provision in the tenth article, forbidding the trustee to invest “in any railroad bonds or in any corporation not located in the city of Waterbury,” does not prohibit investment in State and municipal bonds. The direction in the fourth article as to the maintenance of an office in the Exchange Place property is obligatory upon the trustee so long as that property remains in the trust.

We answer the questions propounded as follows: (1) The “heirs of the blood of my father William Brown” were at testator’s death Frederick J. Brown and Buckingham P. Merriman, who then took, subject to the carrying out of the provisions of the will, a vested estate in remainder in the trust fund, alienable and devisable, but with the enjoyment thereof postponed. (2) No. (3) No; but should there be an income from the estate in excess of that reasonably needed to carry out the provisions of the will, the “heirs of the blood of my father,” or those who stand in their shoes, would be entitled to receive that excess from time to time as it might accrue. (4) The only accumulation of income the trustee ought to permit is that which is reasonably necessary to carry out the express provisions of the will. (5) The trustee should use the income to pay the incumbrances or improve the properties as provided in the will, and after retaining a reasonable amount for the proper administration of the trust and for contingencies, distribute any excess at reasonable intervals to the remaindermen or those who represent them.' (6) No; except as it may be authorized to do so by the Court of Probate. (7) This question has been answered under (1) above. (8) The restriction that no new buildings on the properties in question shall exceed three stories in height, is invalid and not binding upon the trustee. (9) The ninth article was intended to forbid the sale of the Exchange Place property and the Homestead, but is to that extent invalid; the five-year limitation was intended to apply to the other real estate of the testator, and terminated the testamentary power of the trustee to sell at its expiration; the trustee may, however, sell the real estate in its possession if authorized to do so by the Court of Probate. (10) The trustee may invest in State and municipal bonds. (11) The trustee is obligated to keep open an office in the Exchange Place property so long as that property continues in the trust. (12) The provisions in the fourth article with reference to Blanche M. Pierce and Pedro Delgazo are precatory. (13) No. (14) The exception to the power of sale given in the fourth article was intended to refer to the ninth article, but, as the restrictions contained in it as far as they now would be operative are invalid, the exception does not in any way restrict the trustee.

No costs in this court will be taxed in favor of any party.

In this opinion Curtis, Haines and Hinman, Js., concurred.

“Fourth. I give and bequeath to The Colonial Trust Company, a body politic and corporate, located and doing business in said Waterbury, all the rest, residue and remainder of my estate, real and personal, in trust, for the following uses and purposes: To take and have the entire use, management and control of the same, with full power to sell, except as limited and provided in the next clause of this my will, to lease and convey, invest and re-invest the funds of my said estate as in the discretion of said trustees shall seem for the best interests of said estate, for the purpose of raising all such sums of money as shall be required for the payment of the trusts, annuities, charges and legacies hereby created, given and bequeathed.

“The said Colonial Trust Company shall maintain an office on the second floor of the building on my property, on Exchange Place and East Main Street, for the convenience of the occupants and to transact the business pertaining to my estate, to collect and receive all the rents and other income from my estate, and transact other business necessary to the care and keeping up of said property.

“It is my wish that Blanche M. Pierce, having had twenty years and more experience and knowledge of my business, shall be retained during her lifetime as the principal and head of said office, .without bonds. Said trustee shall give her an assistant, who in case of her sickness or absence, with a few years’ experience, may conduct said office during her absence.

“It is my request that Pedro Delgazo be retained as a janitor, as he is very familiar with all my property and has always been employed by me since he came to this country.

“Daily deposits shall be made with The Colonial Trust Company of all money received.

“No leases shall be given for a period exceeding one year on any of my property, and no promise shall be given for the future beyond that time. The good behavior of the tenant shall alone warrant his continuance.

“Fifth. I give and bequeath to my half-brother, Frederick J. Brown, of said Waterbury, an annuity of $3,600, payable in monthly payments of $300 each on the tenth day of each and every month for the term of his natural life; and upon the decease of my said half-brother, Frederick J. Brown, I will and direct that said annuity of $3,600 be paid in monthly payments of $300 each, to his children, Leonie M. Brown Williams and Hayden W. Brown, both of said Waterbury, in equal proportions, share and share alike, for and during their natural lives; and in the event of the decease of the said Leonie M. Brown Williams during the lifetime of her children, I will and direct that one-half of said annuity of $3,600 be paid, in monthly payments each to her surviving children, in equal proportions, share and share alike, for and during the term of their natural lives; and in the event of the decease of either of them, to the survivor or survivors, for and during the term of their natural lives. And in the event of the decease of the said Hayden W. Brown during the lifetime of his children, one-half of said annuity of $3,600 to be paid in monthly payments each to his surviving children, in equal proportions, share and share alike, for and during the term of their natural lives; and in the event of the decease of either of them, to the survivor or survivors, for and during the term of their natural lives.

“Sixth. Should Buckingham P. Merriman of said Waterbuiy, survive my said half-brother, Frederick J. Brown, I give and bequeath to him an annuity of $2,400, payable in monthly payments of $200 each, for and during his natural life; and in the event of the decease of the said Buckingham P. Merriman leaving children, I will and direct that said annuity of $2,400 be paid in monthly payments each to his surviving children, in equal proportions, share and share alike, for and during the term of their natural lives; and in the event of the decease of either of them, to the survivor or survivors, for and during the term of their natural lives.

“Seventh. I give and bequeath to the said Harriet Wheeler Goss, an annuity of $2,400, payable in monthly payments of $200 each, for and during the term of her natural life; and upon the decease of said Harriet Wheeler Goss, I will and direct that an annuity of $3,600 be paid in monthly payments each to her three children, Edward Wheeler Goss, William Middlebrook Goss and Eliot Porter Goss, in equal proportions, share and share alike, for and during their natural lives; and in the event of the decease of either of them, said annuity of $3,600 to be paid to the survivor or survivors, for and during the term of their natural lives.

“Eighth. Should the rents and profits of my real and personal estate be insufficient to pay in full the annuities given in this will, I will and direct that said income, rents and profits be divided pro rata among said annuitants in proportion to the respective sums devised to them under this will.

“Ninth. The said trustee is hereby forbidden to sell or dispose of two parcels of land situated in said Waterbury, one my homestead situated at the comer of West Main and Meadow Streets with the adjoining property, intending hereby to include all the property facing on West Main and Meadow Streets; and one situated at the corner of East Main and South Main Streets, known as the Exchange Place property, intending hereby to include all the property facing on East Main and South Main Streets and Exchange Place; and said trustee is hereby authorized and empowered to sell all of my real estate, wheresoever situated, either by public auction or private sale, as it may deem for the best interest of my estate, except as herein set forth, within five years.

“Tenth. The said Colonial Trust Company is given full power and discretion to invest the income from said estate, and the avails arising from the sales of said real estate belonging to said estate, except that said trustee is forbidden to invest in any railroad bonds, or in any corporation not located in the city of Waterbury, State of Connecticut.

Eleventh. It is my will and I direct said trustee to pay off the incumbrances on my Exchange Place property and West Main and Meadow Streets property so fast as it shall have any unexpended funds in its hands, or to use the funds of said estate as it may deem necessary and proper for the improvement and construction of said Exchange Place and West Main and Meadow Street property; provided, however, that any new buildings placed upon said land shall not exceed three stories in height. The said trustee having full power to use its discretion as to whether it will first remove the said incumbrances on said property, or build upon and improve the same. In the event of damage by fire or other cause to buildings more than three stories high, said buildings shall not be repaired above the third story, but all stories above the third shall be condemned and removed, leaving the buildings three stories in height.

“Twelfth. All the rest, residue and remainder of my estate, real and personal, I give, devise and bequeath to the heirs of the blood of my father, William Brown, to be divided among them per stirpes, to them and their heirs forever.”