The plaintiff prays that the trust created and defined by the fifth clause of his father's will and the codicil modifying and confirming it, of which he is a life beneficiary, be declared terminated, and that the defendant Trust Company, as the trustee thereof, be ordered to distribute and transfer the fund and accumulations in its hands, after an accounting before the Court of Probate, two thirds to the plaintiff, and one third to the defendant Learned as the administrator c. t. a. of the estate of the plaintiff's brother William, deceased. The plaintiff presents this prayer as the assignee of his brother Amasa's interest, as the sole heir of his brother William, and by virtue of his own personal rights and interests, legal and equitable. The defendant Trust Company demurs to the complaint, which recites all the facts upon which the plaintiff relies, for reasons, in substance, that it appears therefrom that said trust has not been determined, that the purpose for which the same was created has not been accomplished, and that there has been no merger of estates in the plaintiff.
The plaintiff's contention, whatever form it is made to assume, involves the successful maintenance of the proposition that the trust in question is now a dry or naked one. On the contrary, it is an active trust. The trustees are, by the express language creating it, vested with a full and unlimited discretionary power to pay to or withhold from the plaintiff, the beneficial life tenant, any or all of the income of the fund, the legal title to which is to remain in the trustees during the continuance of the trust. The naked power of appointment does not enlarge the plaintiff's estate.Mansfield, v. Shelton, 67 Conn. 390. *Page 85
The great current of modern authority in this country is to the effect that an equitable life estate under which the life tenant may have absolute rights, may, by appropriate language, be created by one for the benefit of another, which shall be inalienable by the cestui que trust and beyond the reach of creditors. Nichols v. Eaton, 91 U.S. 716, 725;Hyde v. Woods, 94 id. 523; Broadway Nat. Bank v. Adams,133 Mass. 170; Roberts v. Stevens, 84 Me. 325; Barnes v.Dow, 59 Vt. 530; Keyser v. Mitchell, 67 Pa. 473; Smith v. Towers, 69 Md. 77, 97; Steib v. Whitehead, 111 Ill. 247;Lampert v. Haydel, 96 Mo. 439; Seymour v. McAvoy,121 Cal. 438; Garland v. Garland, 87 Va. 758; Jourolmon v.Massengill, 86 Tenn. 81; Leigh v. Harrison, 69 Miss. 923,933; Wallace Co. v. Campbell Maxey, 53 Tex. 229.
This plaintiff, the beneficial life tenant of this fund, took no absolute right to income. The trustees were vested with full discretionary power to give to or withhold from him any or all thereof. The time, as well as the amount of the payments they might make to him, was left in their control. He was entitled to nothing as of right. Upon repeated occasions we have either said or plainly intimated that such provisions, annexed to an equitable life estate created for the benefit of another, were effective to prevent the alienation by the cestui que trust of his interest or estate, and to shield it from the grasp of creditors. Leavitt v. Beirne,21 Conn. 1; Johnson v. Connecticut Bank, ibid. 148; Farmers M. Sav. Bank v. Brewer, 27 id. 600; Easterly v. Keney, 36 id. 18; Smith v. Wildman, 37 id. 384; Clement's Appeal, 49 id. 519; Tolland County Ins. Co. v. Underwood, 50 id. 493; Huntington v. Jones, 72 id. 45; Ives v. Beecher, 74 id. 564.
The testator has attempted in unmistakable language to create a trust for the life of the plaintiff. The trust thus sought to be established is one which the law recognizes, and to which it attaches significant consequences, of which the testator was plainly seeking to take advantage. A declaration that its purpose had now been accomplished and its existence as an active one terminated, would not only arbitrarily *Page 86 destroy a valid trust, but also defeat the manifest and clearly expressed intent of the testator, and create a merger of estates contrary to that intent — a result which equity does not countenance. Donalds v. Plumb, 8 Conn. 447;Boardman v. Larrabee, 51 id. 39; Eaton v. Simonds, 14 Pick. (Mass.) 98; Smith v. Roberts, 91 N.Y. 470; Wehrhane v. Safe Deposit Co., 89 Md. 179.
The Superior Court is advised to render judgment sustaining the demurrer to the complaint.
Costs in this court will be taxed in favor of said Trust Company against the plaintiff.
In this opinion the other judges concurred.