Dexter v. Evans.

life-time, unless Eliza K. Evans, my wife, sees fit to make a will and dispose of the remainder and residue of these legacies differently, then they go as she wills."

Catherine White has died since the testator's decease; Rachel, Julia and Archibald Kennedy are in advanced years, and straitened circumstances.

The will contains some charitable gifts and provisions in favor of several of the nearest relatives of the testator, two of whom are also made residuary legatees, subject to a life estate in his widow, who is appointed executrix. The last bequest, following the residuary clause, reads thus:

"I give, devise and bequeath to my beloved wife, Eliza K. Evans, five hundred dollars, for her to use as she may see fit in caring for Clara M. Evans, now Mrs. Campbell."

The case is reserved for our advice as to the construction and effect of the clauses above quoted.

In each of them, while the widow is the legatee, the expressed purpose is that, through her, another person may be benefited. Her own support was otherwise provided for.

The last of the legacies is given to the widow "for her to use, as she may see fit, in caring for " Clara M. Campbell. It can therefore be used for no other purpose. The time and manner of such expenditures are left to the honest discretion of the widow, but she is a trustee for the use specified, and takes the money, in the language of Lord ELDON in King v. Denison, 1 Vesey & Beames, 263, 272, not subject to a particular purpose, but for a particular purpose. Loring v. Loring, 100 Mass., 340, 342. Such a construction has been given by this court to expressions quite similar, in Strong v. Strong, 8 Conn., 408, 413, and Bristol v. Austin, 40 Conn., 438, 442.

The language of the other legacies, which provide for assistance to certain relatives of the widow, is less decisive of the testator's intention, but we are of opinion that by these also he designed to create a trust estate of the same nature, and has used words sufficient for his purpose. Each legacy is given to the widow "for her to help" the person designated, as (not if) she may see fit. That he contemplated her giving

Dexter v. Evans.

such help to some extent is evident from the bequest of "the remainder and residue" of the legacies upon her decease. Upon that event, in the absence of any contrary directions in her will, Walter P. White will take any residue which may be unexpended, whether of one or all of these legacies, as a common fund, in trust to apply it (his mother, Catherine White, having died) for the benefit of his uncle, Archibald Kennedy, and in providing for the comfort of his aunts, Rachel and Julia Kennedy, in such manner and proportions as, in the exercise of an honest discretion, he may from time to time see fit.

The words "who will do by his mother and uncle as he may see fit," while precatory in form, we regard as mandatory in effect. That the testator used them with this intention is apparent from the next clause, which provides that he is "also to see that Rachel Kennedy and Julia Kennedy are comfortably provided for during their life-time." He was to aid his mother and uncle, and "also" his aunts.

The succeeding clause, which qualifies the legacy to Walter P. White by adding "unless Eliza K. Evans, my wife, sees fit to make a will and dispose of the remainder and residue of these legacies differently, then they go as she wills," we think must be limited in effect to the manner of accomplishing the purposes of the trust, and cannot defeat the existence of the trust. The testator had set apart $2,000 as a means of helping four of his wife's relatives, and foreseeing that she might not think it judicious to expend the whole during her life-time, selected her nephew as a proper person to succeed her in the trust. He might, however, reasonably contemplate and provide for her possible preference for some other successor, or her desire that the distribution of the unexpended balance should be continued according to the rule of her own discretion rather than that of any new trustee. The clause under consideration would give her such a power, and should, we think, receive no broader construction.

Should the legacy for the benefit of Mrs. Campbell not be expended during the life-time of Mrs. Evans, a new trustee should be appointed to apply the balance remaining, from

Dexter v. Evans.

time to time, in caring for Mrs. Campbell, according to her needs. Birch v. Wade, 3 Vesey & Beames, 198, 200.

It is to be presumed that these trusts will be wisely and fairly administered, but should there be any failure to exercise an honest discretion in favor of the respective beneficiaries, they could obtain proper relief either from the court of probate or in an equitable action. In re Simons's Will, 55 Conn., 239, 243; Smith v. Wildman, 37 Conn., 384; 1 Jarman on Wills, 696.

"If it appear to be the intention of the parties from the whole instrument creating it that the property conveyed is to be held or dealt with for the benefit of another, a court of equity will affix to it the character of a trust, and impose corresponding duties upon the party receiving the title, if it be capable of lawful enforcement. *** In the case of Costabadie v. Costabadie, 6 Hare, 410, 414, Vice Chancellor SIR JAMES WIGRAM said: If the gift be subject to the discretion of another person, so long as that person exercises a sound and honest discretion I am not aware of any principle or any authority upon which the court should deprive the party of that discretionary power. Where a proper and honest discretion is exercised, the legatee takes all that the testator gave or intended he should have-that is, so much as in the honest and reasonable exercise of that discretion he is entitled to. That is the measure of the legacy.' But it is always for the court eventually to say, when called upon, whether the discretion has been either exercised at all, or exercised honestly and in good faith." Colton v. Colton, 127 U. S. R., 300, 310, 321.

Should Mrs. Evans decline to accept any of the trusts, or neglect to give a proper probate bond, another trustee should be appointed by the court of probate, who would apply the funds, during Mrs. Evans's life-time, to helping the respective beneficiaries according to her discretion from time to time.

The Superior Court is advised that Mrs. Evans takes each of the five legacies in question upon a separate and valid trust; that the first, or so much of it as she did not expend

Dexter v. Evans.

in helping Mrs. White during her life-time, should be invested and the accumulations added to the principal during the life-time of the trustee; that Mrs. Evans has full discretion whether to expend the other legacies at once in helping the respective beneficiaries, or to expend them in part, and invest the balance, expending therefrom, in a similar manner, from time to time, as she sees fit; that before entering on either of said trusts she must give a probate bond; that should she decline either trust, the court of probate can designate a successor to hold during her life, who will extend such help to the beneficiary as Mrs. Evans may from time to time direct; that by her will she has power to appoint a trustee of the residue of all or any of the four legacies first given, and to prescribe any reasonable mode of applying the same in helping the beneficiary or beneficiaries entitled under the same; that in default of the execution of this power, Walter P. White will take, upon her death, the unexpended balance of said four legacies, as one common fund, in trust to apply the same for the benefit of his uncle and in providing for the comfort of his aunts, who are named in connec tion therewith, at his discretion; that should Mrs. Campbell survive Mrs. Evans, and any balance of the last bequest of $500 then remain unexpended, a new trustee should be appointed to expend it in caring for Mrs. Campbell according to her needs; that any beneficiary would have a right to relief either by an equitable action or in the probate court, in case of a failure on the part of the trustee to extend any necessary assistance to him, but that in determining such necessity the discretion of Mrs. Evans, or in case of his acting as trustee in default of another appointment by her, of Walter P. White, would control, provided it were exercised honestly and in good faith; and that any balance of any of these five legacies, not expended as herein before mentioned, is part of the residuary estate of the testator.

In this opinion the other judges concurred.

Ross v. Webster.

WILLIAM H. Ross vs. URSULA L. WEBSTER.

Hartford Dist., March T., 1893. ANDREWS, C. J., CARPENTER, TORRANCE, FENN and BALDWIN, Js.

The defendant was fraudulently induced by B to give a note to M for money loaned by M to her, which she allowed B to take. This note was assigned for a full consideration by M to the plaintiff. Afterwards the defendant gave the plaintiff a new note and mortgage in the place of the original note with accrued interest. At this time she knew of the fraud of B in inducing her to give the first note. In a suit upon the note she set up the fraud in defense. Held

1. That the burden of proof of the fraud rested upon her.

2. That the fact that B had fraudulently induced her to give the first note, could not affect M, who acted in good faith in taking the note and paid a full consideration for it.

3. That "earnest solicitation" of B and the plaintiff that the defendant should give the new note in the place of the original one, could not affect the case in the absence of fraud on their part in soliciting it.

[Argued March 9th-decided April 7th, 1893.]

ACTION on two promissory notes executed by the defendant; brought to the Superior Court in Hartford County, and tried to the court before Prentice, J. Facts found and judgment rendered for the plaintiff and appeal by the defendant. The case is fully stated in the opinion.

C. Lounsbury, for the appellant.

The important question in this case, upon the naked facts, and stripped of its disguises, is, whether a note, obtained from the maker by fraud, and purchased by a third party when overdue, is a good consideration for a new note, even though the defendant (and the plaintiff likewise) had knowledge of the fraud. A note obtained by fraud is void. Story on Promissory Notes, § 188; Reynolds v. Bird, 1 Root, 305; Shepard v. Hall, 1 Conn., 332. A void note cannot be used for any legal purpose. It is absolutely waste paper. If, in any case, such a note could be established by a waiver of the fraud, there was no such waiver in this case. A waiver is the intentional relinquishment of a known right. Hoxie v.