(dissenting).* It was obviously the intention
and one of the main purposes of James M. Goodwin in making his will, to provide for his son, Henry W. Goodwin, and his family, a comfortable support during his life, and to secure to the petitioners, two-fifths of - the residue of his estate and its accumulations upon the said Henry’s death. And it is the duty of the court to give effect to that intention so far as it can, consistently with the provisions of the will for other purposes and the established rules of law.
The will directs that the estate of the testator remaining after the payment of his funeral expenses, debts and legacies, except certain real estate in West Hartford, be divided into *185fifty parts, and gives ten parts to the respondent’s wife, the income of twenty parts to his son, James M. Goodwin, Jr., during his life, and remainder to his children, and the other twenty parts, together with the West Hartford real estate, to the respondent, upon trust to sell the whole or any part of the same at his discretion, safely invest the avails, and pay over the use, income and rent thereof from time to time, at his discretion, to the said Henry W. Goodwin during his life, for the comfort and support of himself and family, and at the decease of the said Henry to pay and deliver the same in equal portions to his children.
These provisions, upon well established rules of interpretation, entitled the said Henry W. Goodwin to two-fifths of the entire net income of the residuary estate of the testator, or such portion of it as, in the judgment of the trustee, was necessary for the comfort and support of the said Henry during his life, to be computed from the testator’s death. Williamson v. Williamson, 6 Paige, 298; Lovering v. Minot et al., 9 Cush., 151; Angerstein v. Martin, Turn. & Russ., 234; Hewitt v. Morris, id., 241. They also entitled the petitioners, children of the said Henry, to that portion of the income which the respondent retained and had in his hands at the time of their father’s death, with the interest thereon.
The respondent, who was appointed executor of the will, accepted the trust, gave bonds for its faithful performance, and on the 14tli day of April, 1870, entered upon the discharge of his duties and proceeded to settle the estate. He paid the funeral expenses, debts, legacies, including the annuity to Roxanna G. Wells as it fell due, and all other lawful charges and expenses, and on the 22d of June, 1872, exhibited to the court of probate an account of his administration to the first of the preceding April. That account, which showed a balance of $74,603.98 in favor of the estate, was allowed by the court of probate, but the decree allowing it was appealed from by James M. Goodwin, Jr., to the Superior Court; and that court, at its September term, 1874, disallowed some of the respondent’s charges, amounting to the sum of $4,157.76, and thus increased the- residuum of the *186estate to the sum of $78,761.75. The property composing that residuum consisted mainly of stocks, bonds and cash, including notes of the respondent, yielding an annual net income of about five thousand dollars.
The ordinary duties of the respondent as executor were then at an end. But in consequence of the bequest of a life annuity of four hundred dollars to Roxanna G. Wells no division of the entire principal or corpus of the estate could he made, as Mrs. Wells was then living. The respondent was therefore allowed to retain in his hands the entire body of the estate undivided, and to collect the income and pay the annuity, until that obstacle to a division was removed. Those facts, however, did not prevent the execution of the trust in favor of Henry W. Goodwin and his family, because the income of the estate and the charges upon it each year were ascertainable without difficulty; and as the annuity could properly be paid out of the income, there was no obstacle to a division, according to the intention of the testator, of the sum constituting the net income and the payment of it to the several beneficiaries, from time to time, as the provisions of the will required. When therefore the ordinary duties of the respondent, as executor, were at an end, and as early as April 1st, 1872, the date of his administration account, he began to do those acts which he was authorized only as trustee to do, and he continued so to do from that time until the 1st of October, 1877, the day upon which the committee appointed to find the facts in this case submitted his report to the Superior Court. During the whole of that period he separated the net income from the body of the estate, divided it annually into fifty parts, credited twenty parts thereof in an account kept by him with the trust estate, paid such portions of the same as he, in the exercise of his discretion, deemed proper, to Henry W. Goodwin during his life, and charged the sums paid, in the same account, and retained the residue. From 1872 to 1876 he rendered to the court of probate annually, on the first day of April, an account in his name as “executor” or “executor, &c.,” with the estate of the testator, in which he credited the estate the income he had received *187from it during the year and charged the sums he had paid for taxes, probate fees, his own fees, and the Wells annuity; and the balance he charged as paid to, or credited in account with, James M. Goodwin, Henry W. Goodwin, and Mary J. Brainard, respectively, in the proportions of two-fifths to James,, two-fifths to Henry, and one-fifth to Mrs. Brainard. And by an arrangement with the said Henry W. Goodwin, the respondent appropriated from the income credited in his account with the trust estate, the sum of three thousand one hundred and fifty dollars and sixty-one cents to the payment of two notes due to him individually from the said Henry W. Goodwin.
These acts of the respondent furnish conclusive evidence of his acceptance of the trust created by the will for the benefit of Henry W. Goodwin, his family and the petitioners, and subject him to all the duties and responsibilities of a trustee until he is discharged by due course of law. 3 Redf. on Wills, (2d ed.,) 529, 530; Perry on Trusts, §§ 268, 274. One of the duties of a trustee is to render to his cestuis que trust an account of the money he has received for their benefit or use, and to pay it over or apply it according to the terms of the trust; and if he refuses or neglects to perform that duty, its performance will be decreed by a court of equity upon a bill brought for that purpose. Gen. Stat., tit. 19, ch. 4, § 6. Courts of probate have power to call trustees to account for and concerning the estates intrusted to their charge, and to require them to render their accounts under oath for the year next preceding. Gen. Stat., tit. 18, ch. 11, § 32; tit. 4, ch. 5, § 39. But the jurisdiction thus conferred upon those courts is not exclusive. Prindle v. Holcomb, 45 Conn., 111. And the statute expressly provides that the Superior Court shall have jurisdiction of all suits in equity which are not within the sole jurisdiction of any other court. Gen. Stat., tit. 4, ch. 3, § 2. It is said, however, that the Superior Court has no jurisdiction to order an account to be rendered by the respondent of the income received by him from the estate of the testator for the benefit of Henry W. Goodwin and his family, because the amount cannot be ascertained until a *188final settlement of the administration account in the court of probate. But this claim is sufficiently answered, as it seems to me, by the fact that the amount was ascertained by the respondent himself every year, for four years at least, after the exhibition of his administration account of April 1st, 1872, to the court of probate, and was stated in the several annual accounts which he rendered to that court during those years. Those accounts show that from the first of April, 1872, to the first of April, 1876, the gross income from the estate amounted to $21,566.08, and the charges against it for taxes, probate fees, fees of the respondent for his services, and the Wells annuity, during the same period amounted to $4,844.62, showing a balance of net income of $16,721.41. And two-fifths of that balance, amounting to $6,688.57, is credited by the respondent to the trust estate, and thus completely separated from the body of the estate. No account Avas rendered by the respondent to the court of probate of the income received for the year ending on the first day of April, 1877, or of the charges against it. Nor do the accounts which were rendered to that court show the sums actually paid by the respondent to Henry W. Goodwin out of the net income credited to the trust estate. But the committee finds that the income received by the respondent for the benefit of Henry W. Goodwin and his family and not paid over to him, and the income received for the petitioners since the said Henry’s death, amounted, with compound interest, to the sum of $7,229.61 on the first day of April, 1877, and that the respondent now holds that sum, as well as the avails of the sale of the West Hartford real estate, for the sole use and benefit, of the petitioners.
For these reasons I am of opinion that the respondent is accountable in this suit for the income received by him for the benefit of Henry W. Goodwin and his family, but not paid over to him during his life, and also for the income which he received after the said Henry’s death; and that the action of the committee in charging the same to the respondent was right and should be sanctioned and approved by the court.
With the majority of the court upon all the other questions discussed in their opinion I fully concur.
Judge Hovey of the Superior Court was called in to sit in the case.