A testator gave a specific portion of his property in trust for his grandson and the latter's heirs forever, directing the trustee to pay over the net income to the legatee, together with such portion of the principal as the trustee might deem necessary for the beneficiary's support and education; and provided that whenever in the opinion of the trustee the legatee became capable of prudently managing the property, all of it then remaining should be turned over to him. Held that the testator's intent to give his grandson the entire beneficial interest in the property specified, was sufficiently clear; and as the limitations on his legal title were certain to cease at the legatee's death, if not before, he could lawfully dispose of the property by will. Under the rules of equity practice prevailing in this State, parties to an interpleader suit, or one in the nature of interpleader, are not entitled to have counsel fees allowed and paid out of the fund in controversy; especially in the absence of any such claim in the pleadings. What effect Chap. 42 of the Public Acts of 1893, de complaints in the nature of bills of interpleader, may have when an allowance is claimed in proceedings brought under it, quaere. The ascertainment of heirs or distributees is a mere incident to the order of distribution, and a separate application for such determination under § 628 of the General Statutes is unnecessary and improper. A refusal to determine the distributees, upon the ground that the application only asks for an order of distribution, although erroneous, is harmless if there is no estate to distribute.
HAMERSLEY, J.
As to the case of Henry S. Chase et al., Administrators, v. Aaron A. Benedict et al.
The will of Aaron Benedict, in substance, gives a specific portion of his estate to Charles Benedict, trustee, and to his successor in office, in trust for the grandson of the testator, George H. Benedict, and to his heirs forever. The trustee is directed to pay over the income, and such portion of the principal as he may deem necessary for the support of the legatee, and whenever in his opinion the legatee is capable of prudently managing the estate, the trustee is ordered and directed to "pay over to such legatee such portion of his share as shall be then remaining."
The language of the will is sufficiently clear to express the testator's intent to give to George H. Benedict the whole interest in the property mentioned; to establish a temporary trust for the sole purpose of securing to him a greater advantage from the gift; to limit the duration of this trust by the life of the legatee; and to order the trustee to sooner terminate it if its beneficial purpose is sooner accomplished. Even if the language were deemed less certain, such intention would be plainly implied by the provisions of the will, and would control. Mansfield v. Mix, 71 Conn. 72, 77. As George H. Benedict owned, absolutely, the beneficial interest in the fund in question, and the limitations on his legal title were certain to cease at death, if not before, he could lawfully dispose of the fund by will.
It follows that the defendant, Charles C. Read, executor, is entitled to the fund in the hands of the plaintiffs.
There is, however, an apparent error in the judgment. This is a bill of interpleader. The judgment directs the plaintiffs, who stand indifferent with no contention to maintain, to take from the fund $1,000 for counsel fee, and to pay from the fund the same sum to each of the defendants who have been contesting between themselves the right of possession. He who seeks by an equitable action to recover or secure a fund in which others have an interest similar to his own has occasionally in some jurisdictions been allowed a charge upon it for the expenses of his suit. In this State, by statute, in proceedings by executors to determine the construction of a will, allowances for counsel fees may be made to the parties, at the discretion of the court. General Statutes, § 1124. It may be that under the Act of 1893 (Public Acts of 1893, p. 222), the stakeholder, in a proceeding in the nature of a bill of interpleader authorized by the Act, may ask and receive similar relief. Union Trust Co. v. Stamford Trust Co., 72 Conn. 86. But in the case at bar no such claim was stated in the complaint, and the allowances were made on the theory that they were sanctioned by the ordinary principles of equity practice governing bills of interpleader, or bills in the nature of bills of interpleader. We have given an opportunity to the representatives of the estate, out of which these allowances have been ordered to be paid, to be heard in respect to the validity of the judgment in this respect. They have submitted no argument on this point, and must be presumed therefore to be willing parties to the imposition of such charges. In view of this, and in the absence of any reason of appeal by any party on account of this feature of the judgment, we do not order a reversal; and have stated the law upon the subject simply to avoid any seeming sanction of these allowances, for which we perceive no lawful ground.
As to the appeal from probate. The Court of Probate properly refused to order distribution, although the reason given is wrong. Had there been any estate under the will of Aaron Benedict to distribute, the court should have ordered a distribution, and if necessary for that purpose should have ascertained the distributees. The ascertainment of heirs or distributees is a mere incident to the order of distribution; and a separate application for that purpose under § 628 of the General Statutes is unnecessary and improper. Mack's Appeal, 71 Conn. 122, 129. There was, however, not only no estate for distribution, but the estate of Aaron Benedict was not before the court for settlement. The application was wholly improper. It could not be entertained, and should have been dismissed; and so the judgment of the Superior Court upon appeal should have adjudged the application for distribution to be unfounded, without affirming the erroneous probate decree. This, however, is an error in form, insufficient to be made ground of reversal.