It is well settled that a bequest of residuary estate for life, with remainder over and no time fixed for the commencement of the life use, entitles the life tenant to the use or income of the residue from the death of the testator. Bishop v. Bishop, 81 Conn. 509,525, 71 A. 583; Bartlett v. Slater, 53 Conn. 102,22 A. 678; Lawrence v. Security Co., 56 Conn. 432, 439,15 A. 406.
So when the testator's intention of giving the income to one beneficiary or several beneficiaries for life, and the principal to remaindermen, is carried into effect by the creation of a trust for such purpose, the same rule applies. Webb v. Lines, 77 Conn. 51, 54,58 A. 227; Bancroft v. Security Co., 74 Conn. 218, 50 A. 735.
In the cases cited, the right of the life tenant to receive the income from the trustees was absolute. In this case it is not. During the minority of any beneficiary the trustees are to expend such portion of the income as may seem necessary to provide such beneficiary with a comfortable support and to enable him *Page 180 or her to secure a good education. After any beneficiary becomes of age, he or she is not entitled to receive his or her share of the income absolutely, unless it appears to the trustees that such beneficiary is capable of managing and applying it. And any portion of the income not used in any year is to become a part of the principal.
The claim made on behalf of the possible remaindermen is that in consequence of these conditions in the will, and because the trustees did not qualify until May 17th, 1920, all of the interest accrued up to that date had become "income unused in any year" and must be added to principal.
With this contention we do not agree. Section (l) of Article IX of the will is one of the terms of the trust, and as such it evidently refers to income not used by the trustees in any year. Taken with other terms of the trust, it implies that the trustees have had income in their hands and have exercised a discretion not to use it during the fiscal year. The trustees must first have had an opportunity to use it before it can be said to be "unused" within the meaning of the instrument creating the trust.
The cases cited, and the manifest intention of the testatrix, require us to hold that the fund in question had not lost its character as income when it came into the hands of the trustees in 1920, and it follows that it cannot be said to be income unused in any year until the trustees have had an opportunity to use it and have not done so within the year. On this branch of the case our conclusion is that the trustees are required to treat the fund as income in their hands, and to deal with it as part of the income of the first fiscal year of the trust.
Inasmuch as Charles Stiles Hicock died without issue May 22d 1920, and there is no finding that at any time *Page 181 before his death he appeared to the trustees to be capable of managing and applying his share of the income, the condition precedent upon which his absolute right to receive a share of the income depended had not happened. It does not appear whether the trustees had any funds in their hands before Charles' death. If they had, it does not appear that they had formed any opinion as to his capacity to manage and apply income. Therefore their only power and duty toward Charles was to expend "for his personal support or benefit" such portion of the income, not exceeding one fourth, as they might deem advisable. This they did not do during his lifetime, and we are of opinion that upon his death without issue the trustees are required to divide his share of the accumulated income among the surviving beneficiaries as provided by section (j).
The defendant Avis French Hicock is not yet of age, and is not entitled as of right to any part of the fund. The claim made on her behalf is that under section (h) the trustees have power to expend the whole or any part of her share of the income for her support and education. This they have the right to do, and it follows from our ruling that they have the right to deal in the same way with the accumulated income. It is said that the trustees cannot exercise any discretion,ex post facto, and cannot expend anything for the support and education of the infant during the interval between the death of the testatrix and the receipt of the fund. That is true, for nothing now expended can affect the past comfort, support or education of the infant. The trustees must deal with the conditions existing when they were appointed, including, of course, any condition which may have had its cause in the past. We are further of opinion that the trustees themselves must expend such sums as they deem necessary for the support and education of the infant *Page 182 during her minority, and that her guardian is not entitled to receive and expend them.
The defendants Frances J. and Esther A. Hicock are of age, and it is found that they have ever since the death of the testatrix appeared to the trustees to be capable of managing and applying the income provided for them in the will. These conditions having been satisfied, the trustees are bound to pay to each her proportionate share of the fund.
The Superior Court is advised that the trustees should be directed to pay over one third of the income of the trust fund which accrued during the settlement of the estate to Frances J. Hicock; one third to Esther A. Hicock; and out of the remaining one third to expend such sum or sums as shall in their discretion seem necessary to provide for the comfortable support of Avis French Hicock, during the first fiscal year of the trust, and to enable her during such fiscal year to obtain a good education; and in case any balance of accumulated income remains unused at the end of the first fiscal year of the trust, to add such balance to the principal of the trust fund.
No costs will be taxed in this court.
In this opinion the other judges concurred.