The parties agree that the Court of Probate exceeded its powers in ordering the delivery of the residue of the trust estate to Brownlee R. Ward, when the trustee and one of the claimants to the fund had made clear their intention to procure a construction of the will in order to determine who was entitled to the fund. Whether under other circumstances the court might have issued this order, we need not now inquire.
The court decreed (1) that the trustee file his final account, and (2) that he pay over the trust estate to *Page 290 Brownlee R. Ward. The trial court held that the orders of this decree were indivisible, and as one part was bad the whole was bad. If the decree was entire, the trial court was correct in its conclusion: if the decree was divisible, that part into which the error did not enter is good. Selleck v. Rusco, 46 Conn. 370, 373.
We think the court was in error in holding the parts of the decree indivisible. The subject-matters incorporated in this decree are entirely separate; each is independent of the other, and neither has relation to the other. While the two subjects are grouped in one decree, they are in form as separated as if they had been separate decrees instead of separate orders in one decree. No practical difficulty is apparent which would prevent the sustaining of one part of the decree as legal while holding another part illegal.
The trustee further claims that under General Statutes, § 383, the Court of Probate had the power to require of him as testamentary trustee the filing of an annual account, and that its power, except as to the filing of a final account, was exhausted by the requirement of the annual account, and as no annual account was due from him he was not in default.
The General Assembly, in 1881 (Public Acts of 1881, Chap. 36), conferred upon the Court of Probate for the first time the power to compel testamentary trustees to account, and to adjust and allow their accounts. Later, Chapter 110 of the Public Acts of 1885 specifically imposed upon the court the duty of requiring the filing of annual accounts by such trustees. In the Revision of 1902, § 191, Courts of Probate are given power to call trustees "to account for and concerning the estates intrusted to their charge," while § 383 imposes upon the court the duty of requiring annual accounts and specifies what they shall embrace. We think the broad provision of the Act of *Page 291 1881, retained in General Statutes, § 191, by itself gave the Court of Probate complete power, in the exercise of its reasonable discretion, to call upon the trustee at any time to file an account of his trust. General Statutes, § 383, was intended primarily to impose upon the trustee the statutory duty of filing his account annually, and upon the court the duty of seeing that this requirement was observed. It did not add to the power already possessed by the court, nor limit its power to require the filing of such accounts at its discretion. It merely provided for the filing once a year of an account. In ordinary cases this would be a sufficient supervision, but cases will arise which will make it indispensable that the court shall exercise its supervisory power over testamentary trustees by requiring additional accounts. It is not to be supposed that it was intended to leave such trusts and such trustees free from the supervision of the court in the period between annual accounting.
The trustee further claims that the decree of the court called for the filing of a final account, and that this order was pursuant to the provisions of Chapter 125 of the Public Acts of 1911, and that a final account is one which specifies to whom the trust fund is payable, and that Morse could not be compelled to file a final account until some court of competent jurisdiction had determined to whom the trust estate was payable. Public Acts of 1911, Chapter 125, specifically vests in the Court of Probate jurisdiction over the final accounts of testamentary trustees, and authorizes it "to hear, allow, and settle such final accounts." Whether this added anything to the power conferred by the Act of 1881, may be open to question, but together they settle beyond dispute the right of the Court of Probate to pass on all final accounts.
The trustee now insists that a final account is the *Page 292 final conclusive step preliminary to distribution, and cannot be required until "there has been a final determination of the residually heirs and when ordinarily all other steps in administration have been taken," and should include a "payment or delivery of the property over to the persons entitled to it." This involves a contradiction. The account must precede the distribution, and upon its allowance the amount remaining for distribution is first known. When those to whom the trust belongs are known, the trustee may, after his final account, make distribution to these beneficiaries and thereafter file his account showing such payments. The account which precedes distribution is in our practice called a final account, and it was in such sense the statute of 1911 uses the term final account, and in such sense the Court of Probate used this term in its order. And it precedes and is the basis for the order of distribution. Bancroft v. Security Co.,74 Conn. 218, 223, 50 A. 735.
Protesting the court's power to order him to account, the trustee filed an account of his trust from the date of his last annual account up to March 16th, 1916, the date of the death of the last of the cestui quetrust. He refused to file his account beyond this date upon the theory that the court had no jurisdiction over the trust after that date. That is a palpably erroneous position. The court had control of the trust until the trustee had had his account approved, the persons to whom the trust estate should be turned over ascertained, and the trustee's return of the distribution made had been approved.
The trustee was ordered to file his final account on June 10th, 1916. Reasonable compliance with that order required that he file his account of the condition of the estate down to substantially June 10th, 1916. The account filed did not represent the condition of *Page 293 the estate on June 10th, 1916, for the trustee admittedly received income and made disbursements after March 16th, 1916. The order of the Court of Probate, that the trustee file his final account, was made within the court's jurisdiction and in the performance of its statutory duty. The trustee refused to comply with the order. He is not relieved from the burden of his default by having acted in good faith and upon the advice of counsel. Obedience to the order of the court was the trustee's first duty. An appeal would have protected his every right.
There is error, the judgment is reversed and the cause remanded with direction to the Superior Court to enter judgment in favor of Brownlee R. Ward on the appeal from probate.
In this opinion the other judges concurred.