Without taking space to argue the case, I dissent from the conclusion reached by the other members of the court, on the ground that the clear intent of the testatrix, derived from the words of the will, read in the light of the facts and circumstances relating to the conditions of the family of the testatrix (Johnson v. Edmond, 65 Conn. 492, 495,33 A. 503), is to provide for the support of her husband so as to bring the case within the third exception of the statute of 1899 referred to in the prevailing opinion. The words used were not literally in the language of the statute, for the will was executed more than a year prior to the passage of the Act. Literal compliance with the very words of the exception is not required, if the words in fact used indicate the intent to effect the purpose allowed by the statute. I think the rational interpretation of the words used requires such a construction.
"1. Whether this court may and should enjoin the defendant Brownell from assigning or attempting to assign or in any manner to sell, dispose of or encumber his life interest in the aforesaid trust fund held by the defendant The Westport Bank and Trust Company, under said will of Sarah S. Brownell, deceased, or the income, rents, issues, profits or dividends accrued or to accrue upon said trust fund, unless and until his said indebtedness to the plaintiff as set forth in said complaint and stipulation, and the judgment of this court to be rendered on said indebtedness is wholly discharged and paid, including lawful interest thereon.
"2. Whether this court may and should adjudge and decree that the defendant Brownell assign and set over to the plaintiff, his executors, administrators and assigns, all his right, title and interest in and to the income accrued and to accrue upon said trust fund until said judgment is wholly satisfied and discharged.
"3. Whether the judgment and decree of this court may and should issue requiring the defendant The Westport Bank and Trust Company as trustee under the will of said Sarah S. Brownell and its successors as said trustee, to account forthwith to the plaintiff for all income, rents, issues, profits and dividends accrued upon said trust fund, and in its possession, and to pay over to the plaintiff, his executors, administrators or assigns, on account of said indebtedness to him of the defendant Brownell, the net amount thereof and in like manner to account to the plaintiff and pay over the same to the plaintiff, his executors, administrators or assigns, on account of said indebtedness, periodically, as the said income, rents, issues, profits and dividends accrue in future during the life of said defendant Brownell, until the full amount of the judgment of this court to be rendered in favor of the plaintiff and against said Brownell upon the aforesaid indebtedness, including lawful interest on such judgment, shall be satisfied and discharged, subject, however, to the reservation, annually, of sufficient of said income not exceeding $50 per year to provide for the care and maintenance of the aforesaid cemetery lot, as mentioned in the will of said Sarah S. Brownell.
"4. Whether this plaintiff, if not entitled to relief as above set forth, is entitled to equitable relief in some other form by which the net income accrued and accruing on said trust fund and directed to be paid to the defendant Brownell during his life, or the surplus thereof in excess of $1,000 per year, can and should be made available to the plaintiff as a judgment creditor of said Brownell and if so, in what manner and form such income during his life should be made thus available and payable to the plaintiff, his executors, administrators or assigns, until the aforesaid judgment to be rendered shall be fully paid and discharged, including lawful interest.
"5. Whether the expenses and counsel fees of the defendant trustee to be allowed by this court are chargeable to the income or to the principal of said trust fund, and if in part to each, then in what proportion.
"6. Whether the provisions of paragraph 8 of the will of said testatrix lay any duty or obligation upon the defendant trustee to consult the defendant Brownell regarding the investment or reinvestment of said trust fund or to follow his wishes or desires therein, and whether pending the discharge and satisfaction of said judgment to be rendered in favor of the plaintiff, the latter is to exercise and enjoy whatever rights belong to the defendant Brownell by virtue of said paragraph 8." *Page 226