I cannot agree to the answer given in the majority opinion to the fifth question. The paragraph of the will we are considering begins with a provision which, except for the limitations later made, would vest in Stanley Y. Beach the right to receive all the income of the trust fund *Page 143 during his life. This is followed by the authority to the trustee to withhold income should it not be necessary for his comfortable support and maintenance or should it appear that it was not being used for that purpose, and to use such part of the principal as might be necessary for that purpose, with an expression of the desire of the testatrix that he should at all times have a sufficient amount of money from her estate to insure his support and maintenance. Then comes the gift at his death of "the principal sum that may remain at that time." It seems to me that these provisions show the intention of the testatrix to be that the right to the income should vest in Stanley Y. Beach at her death, subject only to the authority of the trustee to withhold it during his life. That would mean that any income not used for his support and maintenance would, unless otherwise disposed of by him during his life, pass at his death to his estate. He could make no disposition of the right to the income which would be effective during his life and which would not be subject to the right of the trustee to use any income in its hands for him so long as he did live. Such a construction of the will would in no way interfere with the very evident desire of the testatrix to protect him against his own improvidence and to secure him comfortable support as long as he lived. It would require that the trustee should accumulate any surplus income as a separate fund, apart from the principal. Hall's Estate, 248 Pa. 218,93 A. 944; Moore v. Sinnott, 117 Ga. 1010,44 S.E. 810; note, 2 A. L. R. 858.
The assignment to Joseph H. Sand is of all sums of money which had accrued prior to its date, with a direction to the trustee to pay him future income when it might accrue should it be necessary to discharge Stanley Y. Beach's indebtedness to him. I agree with *Page 144 the majority opinion that this assignment cannot be given effect, at least before the death of Stanley Y. Beach. It follows, however, from the construction I place upon the will, that Stanley Y. Beach might have the power to assign the right to unused income vested in him, such assignment to be effective at his death. Moreover, if it should appear that there was a clear surplus of income beyond that which was needed or might be needed for the comfortable support and maintenance of Stanley Y. Beach, it might be that under the provisions of § 5723 of the General Statutes any creditor could bring an action in which the court might order the trustee to pay him the debt owed him by Stanley Y. Beach out of the surplus. CongressHotel Co. v. Martin, 312 Ill. 318, 143 N.E. 838, and note, 33 A. L. R. 565. Any action of the court would, however, necessarily be based upon the finding not only that there was at the time the action came to trial income not needed for Stanley Y. Beach's comfortable support and maintenance, but that in all reasonable probability accumulated income in its hands would not in the future be needed for that purpose.Wordin's Appeal, 64 Conn. 40, 51, 29 A. 238;Colonial Trust Co. v. Brown, 105 Conn. 261, 284,135 A. 555. Except in the respects I have stated I concur in the majority opinion.