If the advice of this court upon the questions *Page 74 propounded be given and a negative reply be returned to all of them, such advice would result in a final judgment dismissing the action, and such judgment could be directed by this court. If, on the other hand, an affirmative reply be given to one or more of the questions, the cause would have to be remanded for a further hearing and the exercise by the trial court of its reasonable discretion as to what action it ought to take upon the facts as found, before the judgment stage would be reached. The judgment when rendered might then be one in favor of either party, would be one which this court could not direct, and might not be one which was conformable to any advice given, since the questions upon which advice was given might not enter into the action of the court at all. If upon the return of the cause the trial court should, after its hearing, decide either that a sale, a sale for other terms than cash, or a sale upon the terms of the particular offer contained in the record, would not be advantageous, this court would find itself in the position of having given advice upon a question or questions which were purely academic and could serve no helpful purpose in the decision of the cause.
The language of the statute (§ 751) is doubtless comprehensive enough to permit this court to entertain reservations of questions of law where the advice given will not be decisive of the final judgment to be rendered in the cause. Doubtless, also, such reservations have been entertained and possibly not infrequently. Such, however, has not been the case of late, repeated rulings having been made in open court to the contrary. State v. Feingold, 77 Conn. 326, note, 59 A. 211. See also New York, H. N. R.Co. v. Boston, H. E. R. Co., 36 Conn. 196. But whatever authority the terms of the statute may confer, and whatever practice may be discovered to have at some time existed, it is certain that the statute did not contemplate, and ought not to be construed to permit, that every question which a trial court may encounter in the progress of a cause, much less every one which it may anticipate that it may encounter, might be brought here at once upon its being *Page 75 either met or scented from afar, and its determination had for the guidance of the trial court. Such a practice would inevitably result in this court being called upon to formulate principles of law which would never enter into the determination of a cause, to formulate such principles in an abstract form suited to more or less general application and not as related to a concrete state of facts and narrowed and simplified by such relation, to create a mass of dicta embodying statements of abstract general principles which might some day rise up to harass judicial action, and to unnecessarily multiply the number of appearances in this court which an action might have before final disposition was made of it.
We do not, however, wish to be understood as saying that no reservation ought to be made or entertained until the case is ready for final judgment. Situations have arisen and may well arise where such action would be in the interest of simplicity, directness and economy in judicial action. Such situations, however, will be those exceptional ones where the advantages resulting from such proceeding are manifest and distinct, and the question upon which advice is asked is one which will quite certainly enter into the determination of the cause.
The situation in the present case is not one of the exceptional character indicated; far from it. Our advice is asked upon three points, each involving considerations more or less foreign to the others. Whether any one of them will ever become pertinent cannot be told until the trial court has performed its functions. The slender thread by which one at least of them is hung to the case is apparent, and the vice of anticipatory abstract adjudications is well illustrated by that example. We are asked to advise whether the court has the power to authorize the acceptance of a certain offer which it does not appear that either the court or the trustee deems an advantageous one. It is quite possible that this request for advice involves the determination of an important question or questions having far reaching consequences, and yet the withdrawal *Page 76 of the offer, the receipt of a better one, or an adverse finding as to the wisdom of acceptance for other cause, would quite likely remove them entirely from the case. Furthermore, if the advice asked should be given, and that advice should be favorable to the power of the court in any of the respects enumerated, the subsequent action of the trial court upon its hearing and in its exercise of its discretion would conceivably furnish ground for the reappearance here of the cause. The discretion which the trial court would in the end be called upon to exercise would not be an absolute but a reviewable one, and the hearing preliminary to its exercise might be productive of reviewable rulings.
If we look for advantage to be anticipated from the giving of the desired advice, to set off against the apparent disadvantages attending it, our search for anything substantial will be in vain. It would be a simple process for the court to pass upon the question of fact as to the desirability of making a sale upon the terms of the offer made, or upon other terms, and of reinvesting the proceeds, to exercise its discretion in either disapproving or approving one in some form and upon some conditions, and thereupon either rendering judgment, or, having thus exhausted its functions preliminary to judgment, reserving the cause for the advice of this court as to the judgment to be rendered upon the situation thus clearly defined. Thus the cause would come here with all possible questions pertinent to its final determination presented, with all questions having no such pertinence eliminated, with all questions narrowed to the precise situation in the case, and in such form that final judgment in conformity to our advice would follow and could be directed. Such a procedure would be the simplest and most direct one conceivable for the determination of the matters at issue, and avoid all possible circuity of action and the rendition of irrelevant and needless advice.
The cause is remanded without advice, to be proceeded with in the Superior Court.