Hemingway v. Hemingway

Storrs, J. Two questions are presented in this case: 1. Whether John Hemingway, second, by the true construction of the will of his father, acquired a devisable interest in the land therein devised to him ; 2. If he did, whether, by his own will, he devised that part of it which was not sold, by order of the legislature, and also the avails of the other part. 1. The first of these questions depends entirely on the import and effect of the terms of the two devises to him, in his father’s will, since the construction of that instrument is not affected, by any. extrinsic facts. His father gives, in the first of these devises, certain lands to the said John, in severalty, and, in the second, certain other lands, to him and his brother jointly. There is no doubt that, independent of the restrictive provision which is added to these devises, they convey a fee simple in those lands, to the said John. We are, therefore, brought to examine that provision, with a view of determining how far it changes or modifies them. By it, the testator appoints three persons, therein named, designating them “ as trustees,” to take into their care, all the property given in his will, to his said son, and then declares, that he may be allowed the improvement, by the consent of those persons; but that the property must not be disposed of, without it is absolutely necessary for his com [470] fort, and then, not without .the consent of said persons, terming them “ the above named agents.” The appellant claims, that the estate in fee simple, which would, by the devises to John, if unrestricted by this provision, pass to him, is so abridged or changed by it, that his interest in the land ceased at his death, and therefore, that there was no estate then left in him, which he could devise ; for, that the effect of that provision is, to create an estate for his life, either in him, or in the appointees thus named, and a remainder in fee to his heirs, or a trust in those appointees, for his use, during his life, and afterwards for the use of his heirs. In our opinion, however, neither the character nor quantity of the estate given, by those devises, was at all altered, by that provision; nor, judging from its terms, was such the intention of the testator. The claim, that a trust is created in these appointees, implies necessarily, that they are invested with the legal estate. But there is no devise to them, of such an estate ; and therefore, if it exists, it might be inferred, as a matter of intention, from the nature of the powers conferred by the provision in question, on them, in connection with the restriction imposed on the said John. It provides, first, that they may take into their care, all the property devised to him, and that he may be allowed to improve it, by their consent. We think that the meaning of this provision is, that these appointees are to be invested with the power of overseeing the said John, in regard to the improvement of the property, and of advising, and perhaps of directing him, as to the manner in which it shall be used ; and that, if, in their judgment, it would be proper, they might permit him to improve it, without their advice or direction. No argument is necessary, to show that such an authority, given to these persons, neither makes it necessary, nor implies, that they should have the legal title to the property. It neither creates a trust, nor an office or agency of that nature. Nor does it invest those persons with any interest or estate in the property, legal or equitable. Treat v. Peck, 5 Conn. R., [471] 280. Their care and supervision over it is to be exercised, on his account, and for his benefit; and he is legally and directly entitled to the avails arising from its improvement. Nor do we think that his possession of the property would be divested or disturbed, by the exercise of the authority of these supervisors. Their appointment, for such a purpose, is more in the nature of an ordinary charge or agency confided to them by the testator, and for which they seem to have been selected by him, in consideration of their relationship and friendship to him and his son, for the protection of the latter, against imposition or unskillful management, than of a trust, as that term is applied to real estate, where the legal title is in one person, and the beneficial ownership in another. It is not necessary to determine, whether it would be competent for John to disregard the advice or directions of those persons, thus selected to oversee him, or whether they would have a remedy, if he should do so ; but if they would, it would be furnished on quite another ground than that they had any estate in the land, legal or equitable. See Shaw v. Lawless, 5 Cl. & F., 129. The expression, moreover, that they are to “take into their care, all'the property that I have, in this my last will, given to my son John,” confirms the preceding devise to him, of the legal estate, and imports, that he is to continue to hold such estate, and that it is his estate, which they are to take care of. Nor does the designation of these persons, “ as trustees,” in this provision, constitute them such, if the powers and duties imposed on them fall short of investing them with that character. But that term was used, in a loose and vague sense, as is evident, from the circumstance, that after-warden the same sentence, they are termed “ agents,” which, indeed, much more nearly describes their true character. The last branch of the provision in question, prohibits the disposition of the property, unless it is absolutely necessary for the comfort of John, and said appointees shall consent thereto. By this clause, no power is given to them to dispose of. it, but only the power of pre [472] venting the disposition of it, by withholding their consent to it, and it is clear, that the alienation of it, when made, is to be by John, and not by these persons. This is most plainly implied, from the requirement of their consent to the alienation, which would be senseless, or at least foolish, if they were to be the persons to aliene it. It is also equally clear, that the alienation here contemplated, and to which this restriction applies, is one to be made, during the life of John, because it is to be one which shall be necessary for his personal comfort. Such an alienation could be made only by deed, and not by devise. Hence this restriction only prevents an alienation, under the particular circumstances mentioned, by John, in his lifetime, by deed; and to that extent only, detracts from the.full power which ensues, and is incident to the ownership of property in fee. Nothing, therefore, in this clause strengthens the claim of the appellant, that any estate or interest was intended 'to be vested in these appointees, or that the estate of John was to cease at his death. The result is, that the interest in the land which was devised to him, by this will, being an estate in fee, was devisable by him. 2. We think that, by the true construction of the devise, in the will of John Hemingway second, it embraced all the property of which he died the owner, and that the word “ possessed,” was used in it, to denote ownership, and not merely personal or corporal occupation. Therefore, the portion of the property devised to him by his father, and which he retained, until his death, and also the avails belonging to him, in the hands of his brother, of that part of it which was sold, under the resolution of the legislature, passed by his will to his devisees. We therefore advise the superior court, to affirm the decree from which this appeal is taken. In this opinion, the other judges concurred. Decree affirmed.