Pardee, J.
Frederick Tyler died on August 3d, 1880. By his will he devised two fifths of the residue of his estate, after payment of debts and specific legacies, in trust for the life use of his daughter, Mrs. Sarah S. Cowen, the remainder over. The trustees named by him declined the trust. On December 4th, 1880, the defendant, the Security Company, became, and still continues to be, the duly appointed trustee.
On October 29th, 1881, the executors exhibited an account to the probate court. It was accepted and distributors were appointed. On January 23d, 1882, the executors exhibited their final account and it was accepted. On February 2d, 1882, the distributors made return of distribution, [435] which was accepted. They distributed to the defendant as trustee for Mrs. Cowen real and personal estate of the value of nearly $40,000.
On June 15th, 1881, the executors paid to the defendant as such trustee the sum of $15,000, and on August 20th, 1881, the additional sum of $10,000. Between these respective dates and the first day of November, 1881, these sums earned in the hands of the defendant the sum of $481.34 as interest; and it subsequently delivered this last named sum to the executors, as being the property of the estate, on the ground that Mrs. Cowen was not entitled to any interest earned prior to distribution.
On the 24th day of May, 1884, the firm of Brewster & Company, as surviving partner of which the plaintiff brings the present suit of scire facias, instituted a civil action against Mrs. Co.wen in the Superior Court for Hartford County, demanding $3,000 damages, and on the 29th day of that month caused due service of garnishment to be made upon the defendant as her agent, trustee and debtor.
On March 15th, 1887, they recovered judgment against her for $2,135.76 damages, and $75.17 costs; and on the same day instituted an action on the judgment against her, making due service of process of garnishment thereon upon the defendant as her agent, trustee and debtor. In both cases the officer serving the process called on the defendant, under Gen. Statutes, § 1234, to disclose as to whether it was indebted to Mrs. Cowen, and the defendant replied that it was not then indebted to her.
The officer not being able to find upon the latter process any property belonging to Mrs. Cowen, the firm on the same day filed their petition in the probate court, alleging the proceedings in that suit, and asking for the appointment of a trustee to take possession of her estate for the benefit of her creditors.
The suit was pending in the Superior Court at, and was abated by, her death on June 24th 1887. At the time of the commencement of this second suit Brewster & Co. had no reason for believing the disclosure of the defendant to be [436] untrue, and did believe it to be true and relied upon it, and their chief object in instituting the second suit was to make it the basis for proceedings in insolvency, and they did not until some time in April, 1887, know that no part of the income accruing from the estate between the- date of the testator’s death in August, 1880, and the first day of November, 1881, had been paid to Mrs. Cowen, or that any part of such income had been included in the amount distributed and paid over to the defendant as trustee.
The probate court allowed to Mrs. Cowen, and she accepted, the sum of $1,500 for her support during the settlement of the estate as the family of the testator.
On February 2d, 1882, the distributors made their return of distribution, which was accepted by the probate court. After deducting specific legacies, family allowances, debts and all other charges, the residue left for distribution amounted to $99,425.51, which amount included the estate inventoried, increase in value of stocks, proceeds of sales, and all interest, rents and dividends, amounting to $5,110.21, accruing from the death of the testator to November, 1881; and in payment of debts and charges, and in the distribution, no distinction was made between principal and income. The defendant as such trustee received two fifths of the residue so made up and treated the whole as the principal of the trust fund.
The executors did not pay to Mrs. Cowen any part of the interest, rents or dividends accruing before November 1st, 1881, unless the allowance of $1,500 to her as the family of the testator can legally be so treated.
Neither Mrs. Cowen, nor the defendant, nor any person in her behalf, objected to the distribution or appealed from the decree of the probate court accepting it.
In February, 1883, and on each subsequent January to the present year, the defendant as such trustee has exhibited an account to the probate court, of receipts, payments and expenses as trustee, and an inventory of the trust fund, making oath that the accounts were correct; the probate court indorsed thereon “ exhibited, sworn to and accepted,” with [437] the date, and recorded the same, together with such indorsement; with this exception, that the part of the account giving items was not recorded, but filed merely. Mrs. Cowen was not present at such exhibition of accounts; she had neither notice nor knowledge thereof, and she took no appeal from the decree of the court accepting them.
Upon the death of Mrs. Cowen intestate, her estate was represented as insolvent, and commissioners were appointed to receive and determine upon claims presented against it. Subsequently to the bringing of this suit the plaintiff presented his judgment to them as a claim, omitting to state that he had any security therefor, as required by Gen. Statutes, § 590, and the commissioners allowed the same in full as a claim wholly unsecured.
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Pardee, J.
Frederick Tyler died on August 3d, 1880. By his will he devised two fifths of the residue of his estate, after payment of debts and specific legacies, in trust for the life use of his daughter, Mrs. Sarah S. Cowen, the remainder over. The trustees named by him declined the trust. On December 4th, 1880, the defendant, the Security Company, became, and still continues to be, the duly appointed trustee.
On October 29th, 1881, the executors exhibited an account to the probate court. It was accepted and distributors were appointed. On January 23d, 1882, the executors exhibited their final account and it was accepted. On February 2d, 1882, the distributors made return of distribution, [435] which was accepted. They distributed to the defendant as trustee for Mrs. Cowen real and personal estate of the value of nearly $40,000.
On June 15th, 1881, the executors paid to the defendant as such trustee the sum of $15,000, and on August 20th, 1881, the additional sum of $10,000. Between these respective dates and the first day of November, 1881, these sums earned in the hands of the defendant the sum of $481.34 as interest; and it subsequently delivered this last named sum to the executors, as being the property of the estate, on the ground that Mrs. Cowen was not entitled to any interest earned prior to distribution.
On the 24th day of May, 1884, the firm of Brewster & Company, as surviving partner of which the plaintiff brings the present suit of scire facias, instituted a civil action against Mrs. Co.wen in the Superior Court for Hartford County, demanding $3,000 damages, and on the 29th day of that month caused due service of garnishment to be made upon the defendant as her agent, trustee and debtor.
On March 15th, 1887, they recovered judgment against her for $2,135.76 damages, and $75.17 costs; and on the same day instituted an action on the judgment against her, making due service of process of garnishment thereon upon the defendant as her agent, trustee and debtor. In both cases the officer serving the process called on the defendant, under Gen. Statutes, § 1234, to disclose as to whether it was indebted to Mrs. Cowen, and the defendant replied that it was not then indebted to her.
The officer not being able to find upon the latter process any property belonging to Mrs. Cowen, the firm on the same day filed their petition in the probate court, alleging the proceedings in that suit, and asking for the appointment of a trustee to take possession of her estate for the benefit of her creditors.
The suit was pending in the Superior Court at, and was abated by, her death on June 24th 1887. At the time of the commencement of this second suit Brewster & Co. had no reason for believing the disclosure of the defendant to be [436] untrue, and did believe it to be true and relied upon it, and their chief object in instituting the second suit was to make it the basis for proceedings in insolvency, and they did not until some time in April, 1887, know that no part of the income accruing from the estate between the- date of the testator’s death in August, 1880, and the first day of November, 1881, had been paid to Mrs. Cowen, or that any part of such income had been included in the amount distributed and paid over to the defendant as trustee.
The probate court allowed to Mrs. Cowen, and she accepted, the sum of $1,500 for her support during the settlement of the estate as the family of the testator.
On February 2d, 1882, the distributors made their return of distribution, which was accepted by the probate court. After deducting specific legacies, family allowances, debts and all other charges, the residue left for distribution amounted to $99,425.51, which amount included the estate inventoried, increase in value of stocks, proceeds of sales, and all interest, rents and dividends, amounting to $5,110.21, accruing from the death of the testator to November, 1881; and in payment of debts and charges, and in the distribution, no distinction was made between principal and income. The defendant as such trustee received two fifths of the residue so made up and treated the whole as the principal of the trust fund.
The executors did not pay to Mrs. Cowen any part of the interest, rents or dividends accruing before November 1st, 1881, unless the allowance of $1,500 to her as the family of the testator can legally be so treated.
Neither Mrs. Cowen, nor the defendant, nor any person in her behalf, objected to the distribution or appealed from the decree of the probate court accepting it.
In February, 1883, and on each subsequent January to the present year, the defendant as such trustee has exhibited an account to the probate court, of receipts, payments and expenses as trustee, and an inventory of the trust fund, making oath that the accounts were correct; the probate court indorsed thereon “ exhibited, sworn to and accepted,” with [437] the date, and recorded the same, together with such indorsement; with this exception, that the part of the account giving items was not recorded, but filed merely. Mrs. Cowen was not present at such exhibition of accounts; she had neither notice nor knowledge thereof, and she took no appeal from the decree of the court accepting them.
Upon the death of Mrs. Cowen intestate, her estate was represented as insolvent, and commissioners were appointed to receive and determine upon claims presented against it. Subsequently to the bringing of this suit the plaintiff presented his judgment to them as a claim, omitting to state that he had any security therefor, as required by Gen. Statutes, § 590, and the commissioners allowed the same in full as a claim wholly unsecured.
Upon the foregoing facts the plaintiff claimed—(1st.) That by the will of Frederick Tyler, Mrs. Cowen was entitled to rent and income accruing after the date of the testator’s death (instead of after November 1st, 1881) from the estate given by the fourth clause of the will in trust for her benefit.—(2d.) That, if she were not entitled to such rent and income from the date of the death of said Tyler, she was entitled to rent and income so accruing after the expiration of one year, that is, rent and income accruing after August 3d, 1881.—(3d.) That she was entitled to the interest, amounting to $431.34, accruing from June 15th, 1881, and August 20th, 1881, to November 1st, 1881, on the $15,000 and $10,000, paid to the trustee by the executors, which interest was paid by the trustee to the executors, instead of to Mrs. Cowen;—(4th.) That the defendant had never in fact been released or discharged by Mrs. Cowen from its liability to her for any of said rent or income accruing prior to November. 1st, 1881, and that the matters alleged in the answer and found true by the court did not amount to a discharge of such liability by operation of law.—(5th.) That, on May 29th, 1884, when the defendant was garnished, it had in its hands, of such rent and income as had accrued between Mr. Tyler’s death and November 1st, 1881, a large sum, to wit, about the sum of $2,000 (namely, two fifths of [438] $5,110.21), and that the defendant was liable to Mrs. Cowen and indebted to her on said May 29th, for two thirds thereof, the other one third being dne to her daughter, Sophia T. —(6th.) That the defendant was then liable to Mrs. Cowen for such amount of rent and income, as having moneys belonging to her in its hands which it had received from the executors of Mr. Tyler.-—-(7th.) That it was then liable to her for such amount, as having in its hands that amount of accrued rents and income belonging to her, which it was its duty as trustee to pay over.—(8th.) That it was then liable to her to that amount in damages for its failure to duly execute the trust in her favor, and its neglect to collect and pay over to her the rent and income accruing prior to November 1st, 1881, to which she was entitled.—(9th.) That the defendant was liable to Mrs. Cowen and indebted to her at the time of the garnishment on May 29th, 1884, for her portion of rent and income accruing after the expiration of one year from her father’s death and prior to November 1st, 1881, that is, from August, 1881, to November 1st, 1881.
—(10th.) That on May 29th, 1884, the defendant was indebted to Mrs. Cowen for the interest, $431.34, accruing on said sums of $15,000 and $10,000, from June 15th, 1881, and August 20th, 1881, to November 1st, 1881.—(11th.) That the plaintiff, by the suit and garnishment of the defendant on March 15th, 1887, had not in any way released or discharged the defendant from its liability upon the original garnishment of May 29th, 1884.
But the court overruled all the claims of the plaintiff, and upon the foregoing facts decided that, under the provisions of section fourth of the will, Mrs -Cowen was not entitled to any rent or income accruing before November 1st, 1881, and also found upon the foregoing facts, that at the time of the garnishment, on May 29th, 1884, the defendant was not indebted to Mrs. Cowen, and had no estate of hers in its hands, and rendered judgment for the defendant. The plaintiff has brought the case before this court by appeal.
The claims of the' defendant are—(1st.) .That under the will no part of the interest, rents or dividends earned by [439] the estate between the date of the testator’s death and the date of distribution became the absohite property of Mrs. Cowen as the life tenant of an aliquot part of the residue of the estate.—(2d.) That the bringing of the second suit on March 15th, 1887, aud service 'of process of garnishment therewith upon the defendant, was the intentional relinquishment of the attachment lien obtained by service of process on May 29th, 1884.—(3d.) That there was a distribution by order of the probate court, and a payment to the defendant as trustee, of a sum as principal; that this order was conclusive upon the trustee, Mrs. Cowen, and the remaindermen ; that neither the trustee nor Mrs. Cowen appealed therefrom; and that the remaindermen, who are interested in the fund, are not parties to this proceeding. —(4th.) That the decrees of the probate court in allowing the annual accounts of the trustee are conclusive upon all parties, there having been no appeal.—(5th.) That the plaintiff by presenting his judgment to the commissioners upon the estate of Mrs. Cowen as being wholly unsecured, waived his lien by garnishment, and is now estopped from claiming anything by virtue thereof.
Whatever may be the rule as to the time when a legacy of a sum of money becomes payable and begins to draw interest if payment is deferred, in the absence of any express declaration upon that point in the will, it is well established that where there is the bequest of the whole or of an aliquot part of the residue of an estate to a legatee for life, remainder over, and no time is fixed by the will for the commencement of such life use, the legatee is entitled to the use or income of the clear residue so bequeathed, as the same may be at last ascertained, to be computed from the death of the testator ; is entitled to the income which may accrue during every moment of life subsequent to the moment when the will becomes an operative instrument, unless it places some limitation upon such enjoyment. In the will before us there is no such limitation, either express or by necessary legal implication. 1 Jarman on Wills, (4th Am. ed.,) side page 547, note; Williamson v. Williamson, 6 Paige, 298; Cooke v. [440] Meeker, 36 N. York, 15; Bartlett v. Slater, 53 Conn., 106; Lovering v. Minot, 9 Cush., 151; Pollock v. Learned, 102 Mass., 54; Angerstein v. Martin, Turn. & Russ., 234.
Between the date of the death of the testator and that of distribution, the estate in the hands of the executors earned nearly $4,600. They were the lawful recipients of this income, but it formed no part of the estate to be distributed ; no part of the residue of capital which the will required them to pay to the trustee for Mrs. Cowen. It was their duty to pay two fifths thereof to her as of her absolute property. But they mingled it with the capital and subjected the whole to the action of distributors. These last distributed the whole as the property of the estate; the probate court set its seal of approval to the distribution by its decree affirming it. All legatees, life tenants and remaindermen alike, including Mrs. Cowen, were parties to this decree determining that this income should be distributed as principal. Mrs. Cowen was of legal capacity ; she knew that the estate was in settlement in the probate court aud that that court would by its decree determine her right in this regard; she had her day in court and the fight of appeal; this last right none the less because her share of the residue would be in the keeping of the defendant as trasteé. Inasmuch therefore as the defendant had neither possession nor right of possession of this portion of the rents, interest and dividends belonging to Mrs. Cowen, nor owed any legal duty to her either to obtain such possession or to appeal on her behalf from the decree of approval by the probate court of the distribution thereof, it had not in respect thereof at the time of service of the plaintiff’s process of garnishment, any money, goods or effects belonging to her in its hands, and owed her no debt.
The legal duty owed by it to her could be discharged by the safe keeping of the amount which it received under the decree of the probate court as residuary principal of the estate. There is therefore a final decree of a court having jurisdiction of the property and of all persons interested in it, neither reversed nor appealed from, determining that a portion of the property which the plaintiff seeks by his writ of [441] scire facias to sequester to Ms use, as the absolute property of Mrs. Cowen, is not such. The rights of remaindermen under that decree are beyond his reach.
On the 15th day of June, 1881, the executors paid, as a portion of the residue, $15,000, and on August 20th following $10,000, to the defendant as such trustee, as principal of the fund for the life use of Mrs. Cowen. These sums so received and retained by it earned in its hands the sum of of $481.84 prior to the 1st day of November following. This interest thus received was the absolute property of Mrs. Cowen. Upon reception thereof the defendant became her debtor to that amount, and could relieve itself from its obligation to her therefor only by payment to or for her. The payment thereof by it to the executors was neither to nor for her; therefore, so far as she was concerned, it was of no legal significance. As to her it was a wrongful payment. The defendant continued thereafter to be her debtor as before, and that debt is subject to attachment by the plaintiff. This result is not affected by the fact that tMs income was subsequently mingled by the executors with the principal of the estate, and was distributed as such under the order of the probate court, and that such distribution was confirmed by a decree of the court to which Mrs. Cowen was a party and from which she took no appeal. That decree concludes her as between herself and the remaindermen, but not as between herself and the defendant as her trustee, in respect to its obligations to her. The sole purpose of it was to determine that the distributors had rightly divided the residue; not at all to adjust an account between trustee and cestui que trust. Nor is it affected by the fact that the probate court subsequently approved a statement of that account in which such payment was entered. This was no notice to her that such payment had been made; none that approval thereof would be asked. She had no knowledge either of payment or of approval. No statute required, indeed no statute could require her to take notice of either at her peril. The order passed under such circumstances does not conclude her.
[442] While the estate was before the probate court for settlement that court had jurisdiction of it for all purposes until the settlement was completed; but when a portion of the residue was distributed to the defendant as trustee, the trust fund became a distinct matter, over which the probate court had no jurisdiction until it was brought before it, and it could not be brought before it in such a way as to give it complete jurisdiction so that it could pass a decree binding upon all parties interested, except by notice served upon those parties. The filing of an inventory by the trustee and the rendering of an annual account, under Gen. Statutes, § 498, does not give the court such jurisdiction where such notice has not been given.
Upon the death of Mrs. Co wen intestate, her estate was represented to be insolvent, and commissioners were appointed to receive and decide upon the claims of creditors, and to report to the probate "court a list thereof, specifying such as were allowed, also such as were disallowed by them, and to inquire into the cash value of any security upon the property of the estate which any creditor might have. The plaintiff presented his judgment as a claim to the commissioners, making no mention of any security by attachment, and his judgment was allowed in full, as an unsecured claim.
It is the claim of the defendant that thereby the plaintiff waived his lien and estopped himself from now claiming anything under it.
The commissioners reported to the probate court their allowance of the entire amount of the plaintiff’s judgment as a claim in his favor against the estate of Mrs. Cowen, and were silent as to any security therefor. That report not having been appealed from, the defendant, whether speaking for itself or Mrs. Cowen’s estate, cannot now inquire as to the amount thereby ordered to be paid to the plaintiff. The matter was one wholly for the commissioners to determine, or the Superior Court on apijeal from their action, and the plaintiff’s right to any security that he held and is now claiming, is not affected by his action at that time or by that [443] of the commissioners. The estate has had its day in court, and it cannot now intervene between the parties to the present suit. Much less can the defendant, holding money of the estate, make the matter a defense to this scire facias.
The defendant thinks that a great wrong will be done if the plaintiff should by the joint effect of the allowance by the1 commissioners and of his lien receive a larger per eentage upon his claim than he would regularly have done. The wrong would be greater if an insolvent debtor should he allowed to withhold a portion of his estate from all creditors; and still greater if this defendant, not'a creditor, should be allowed to keep a portion for its own use.
The plaintiff by his first writ, served on the 29th day of May, 1884, attached whatever of the property of Mrs. Cowen was then in the hands of the defendant. By his second writ, served on the 15th day of March, 188T, and which was an action on the judgment obtained in the first suit, he again garnished the defendant, attaching thereby whatever of such property had come into its hands between these respective dates. The defendant insists that the second suit is the intentional abandonment of the first.
This question of inteut is one of fact, and there is no finding of abandonment. Besides this, it is found that the second suit was brought as a step under the statute toward carrying Mrs. Cowen into insolvency. With this object in view, there is no room for the inference that he intended in bringing it to abandon the lien that he had acquired by the first attachment. As the second suit never went into judgment it is not necessary to consider what would have been the effect on the scire facias if the first judgment had been merged in a second one.
. The probate court made an allowance to Mrs. Cowen from the estate of her father, of the sum of $1,500 for her subsistence as his family during the period of settlement. This was a discretionary act, having no reference to. or effect upon any provision of the will, nor upon the right of any heir or legatee. It was a matter wholly for the probate court to determine, and its action cannot be reviewed by [444] this court except upon appeal. Mrs. Cowen’s right to the income of the share of residue set apart for her use cannot be affected by her having received this allowance for her support, although her right to that income may have made the allowance unnecessary.
There is error in the judgment of the Superior Court so far forth as the item of 1431.34 is concerned, being interest accruing upon the sum of $15,000 between June 15th and-November 1st, 1881, and’upon the sum of $10,000 between August 20th and November 1st, 1881, in the hands' of the defendant as trustee," for which it was indebted to Mrs. Cowen at the time of service of process of garnishment.
In this opinion the other judges concurred.