Pond v. Hine , 21 Conn. 519 ( 1852 )

Hinman, J.

We think the plaintiff, in this case, must be allowed to retain his verdict. The application for a new trial rests entirely on technical grounds, and ought not to be favoured. The defendant does not deny his indebtedness, to the extent of the bond; nor does he show, that any other person than the plaintiff is entitled to receive the money upon it. It is clear, that it cannot be paid to the persons who may eventually be entitled to it, because it is yet uncertain who they will be. The question is, therefore, whether the plaintiff, who now consents to act as trustee, shall be permitted to do so; or whether the beneficiaries shall be turned over to a court of equity, to recover the money, and have another trustee appointed, to receive and keep it for them? The plaintiff was first appointed trustee, by the defendant himself, with the consent of his brother Harmon; and no dissent has ever been expressed, by any one. Has, then, the plaintiff accepted the trust? His taking the bond and bringing a suit on it, is an acceptance, unless he was prevented from accepting, by his previous declaration, that he would not accept. It was said, that this declaration estopped the plaintiff from accepting the trust afterwards. This, clearly, is not so; the defendant did nothing in consequence of this declaration, and he suffers nothing by it, or by the plaintiff’s conduct, inconsistent with it; and, under the circumstances, we do not think this declaration amounted to a refusal to accept. The bond was not present, at the time; and could not be offered to the plaintiff. The defendant and his brother had jointly placed it in the hands of Mr. Brinsmade, for him to deliver to the plaintiff; and this authority was never countermanded, by either of them. Had the defendant, on his being informed by the plaintiff, that he should not accept the trust, notified Mr. Brinsmade of it, and, on that ground, requested him not to deliver the bond, it would have raised a different question. But he suffered it to remain, without objection; and we think it must be presumed to have remained, for the purpose for which it was first put into Mr. Brinsmade's hands.

We think the charge to the jury was right, and do not advise a new trial.

The other judges were of the same opinion, except Waite, J., who was disqualified under the statute of 1852, c. 24, § 4.

New trial denied.