The defendants, Noll, Noll & Worden, are the assignees of the original lessees. The lease is dated May 11, 1915, and the premises are described as a store on the extreme Vest-south end of the theater building owned by ed estate not forfeited for breach of covenant the lessors. The term was for ten years, or condition subsequent, where performance prohibited by law.

(113 A.)

'no license,' or if for any reason other than the if the city of Hartford should vote no liunsuitability of the applicant a license should cense, or if a license should be refused by be refused by the county commissioners in and the county commissioners for any other reafor Hartford county in said premises, during son than the unsuitability of the applicant, the leasehold term or any renewal thereof, then "then this lease is void at the option of said this lease is void at the option of said party party of the second part." Thus the parties of the second part. * * *The privilege is hereby given to said party of the second part themselves have provided for the contingento assign or underlet said premises during said cy of the covenanted use becoming unlawful, and in that event they have agreed, not that the covenant against using the premises for any other purpose should be repealed, but that the whole lease should be void at the option of the lessee, and, by plain implication, that otherwise it should remain in full force and effect.

term."

The demurrer rests upon several grounds, which may be summarized as follows: (1) Because the covenant to use the premises only as a saloon and liquor establishment created the condition precedent, which has been fulfilled; (2) because such covenant is The lessee's claim is that this option was not one of the covenants for a breach of for his benefit, and that it leaves him free which the lessor might re-enter and take either to avoid the lease or to keep it alive, possession of the premises; (3) because the and in the latter case to invoke the rule that covenant, if regarded as a continuing covea vested estate will not be forfeited for nant, has become impossible of performance breach of a condition subsequent whose perby the act of the law, and is therefore re-formance has become impossible because pealed; (4) because it is provided in the prohibited by law. lease that, in case the sale of liquor in the premises becomes illegal, the lessee, and not the lessor, is given the option of avoiding

the lease.

There are two main questions in the case: Whether the rule of law on which the lessee relies applies to a case in which the parties themselves have contracted as to what shall

Josiah H. Peck and Max Adelson, both of be the effect of a legal prohibition against Hartford, for appellants.

John T. Robinson and Francis P. Rohrmayer, both of Hartford, for appellee Callender Bros., Inc.

Joseph P. Tuttle and R. L. Gideon, both of Hartford, for appellees Noll and others.

BEACH, J. (after stating the facts as above). The lessee claims that the entire clause of the lease which gives rise to this controversy should be construed as a condition precedent, not only because the parties have so described it, but also for the purpose of avoiding a forfeiture. We think, however, that the agreement that the premises shall be used only as a saloon and liquor establishment necessarily relates to their continued use by the lessee throughout the term. On the face of the papers the lease is conditioned on this agreement, and it is made a condition precedent to its operation as a lease. The condition precedent was fulfilled, either by the agreement itself or by the commencement of the liquor business on the premises, and as a condition precedent the clause has no present significance, except as it may indicate the importance which the lessor attached to the performance of the continuing covenant to use the premises only for the agreed purpose. The latter covenant has an affirmative and negative aspect. Affirmatively it is to use the premises as a saloon and liquor establishment, and negatively not to use them for any other purpose. When the lease was made it was necessarily within the contemplation of the parties that the continued use of the premises as a saloon might become unlawful, and they provided for that contingency by agreeing that

1

the continued performance of the condition, and whether the rule applies to a short term commercial lease, so as to enable the lessee to use the premises for a purpose for which he has expressly covenanted that he will not use them.

[1] The rule of law on which the lessee relies is well established. 1 Swift. Dig. 94; Scovill v. McMahon, 62 Conn. 378, 26 Atl. 479, 21 L. R. A. 58, 36 Am. St. Rep. 350, and cases cited. It is not limited in its operation to conditions which, properly speaking, are limitations imposed on the grantee by the grantor, but extends to mutual covenants annexed to a conveyance of title to real estate; for example, to a covenant that an annual rent charge shall be paid to the life tenant without deduction of taxes. "So if H. covenants to do a thing which is lawful, and an act of parliament comes in and hinders him, the covenant is repealed." Brewster v. Kitchell, 1 Salk. 198.

[2] Such is the effect which the law gives to a legal prohibition against a continued performance of a covenant or condition annexed to a conveyance of title, when the parties have not themselves contracted with reference to that contingency. But it is clear that, if the parties do contemplate the happening of that contingency, they may agree upon its consequences. In this case they were bound to contemplate the possibility that under existing law the use of the premises as a saloon might become unlawful, and they have done so. The language used refers specifically to the city of Hartford voting no license and to the county commissioners refusing a license, but the result is that they have agreed upon the consequences

of the covenanted use becoming unlawful, in | license were, in legal effect, equivalent to a language which covers the whole range of refusal by the county commissioners to grant legal possibilities so far as they could fore- a license, for a reason other than the unsee them. They have not contracted with suitability of the applicant; that the lessee reference to national prohibition as distin- was thereupon entitled, and within a reaguished from local prohibition, but the con- sonable time required, to elect whether he sequences are the same so far as the cove- would declare the lease void or leave it in nant of use of the premises is concerned, and force, and that, having elected, notwiththe parties were necessarily concerned with standing the prohibition of the Volstead Act, the consequences rather than with the form to leave the lease in force, he remained of the prohibition. bound by his covenants so far as they were legally capable of performance, and could not use the premises for a purpose for which he agreed not to use them.

premises.

These conclusions are decisive of the case, and it is unnecessary to determine whether the rule in Scovill v. McMahon would have applied to this lease, if the parties had not agreed upon the consequences of the covenanted use becoming illegal.

Suppose, for example, the General Assembly had forbidden the maintenance of saloons in theater buildings. The lessee would then have a right to vacate the premises The use of the premises as a retail shoe and stop paying rent, without waiting to go store by the sublessees or assignees, Noll, through with the idle ceremony of asking Noll & Worden, was a breach of covenant the county commisioners for a license which which entitled the lessors to enter for conthey would have had no power to grant.dition broken and to retake possession of the The Volstead Act (41 Stat. 305), which is also a domestic statute, has superseded Gen. St. 1918, § 2731, so far as that section authorizes the county commissioners to grant licenses for the sale of intoxicating liquors containing one-half of 1 per cent. or more of alcohol. If we assume that the covenant to use the premises only as a saloon and liquor establishment would not be performed, within the fair meaning of the contract, by using them for the restricted purpose of selling beverages containing less than one-half of 1 per cent. of alcohol, then the Volstead Act, when it became operative on January 17, 1920, deprived the county commissioners of any power to grant a license to use the premises for the covenanted use, and also revoked the license which was then in force; and as the lessee was not bound to ask the county commissioners to do what they were forbidden by law to do, he was then entitled at his option to cancel the lease, or to keep it in force.

On the other hand, if we assume that the use of the premises for the restricted purpose of selling beverages containing less than one-half of 1 per cent. of alcohol is a performance of the covenant to use the premises as a saloon and liquor establishment, then the continued performance of the covenant has not been forbidden by law. In either case the lease is, for the purposes of this case, still in force as a contract controlling the legal rights of the parties because the lessee has not attempted to avail himself of his option to escape from its obligations.

[3] We hold that the contingency of a legal prohibition of the covenanted use was contemplated and its consequences provided for in the lease; that the revocation by the Volstead Act on January 17, 1920, of the existing license to sell intoxicating liquor containing more than one-half of 1 per cent. of alcohol and the revocation of the authority of the county commissioners to grant a new

There is error; the judgment is reversed and the cause remanded to the superior court for further proceedings according to law. The other judges concurred, except CURTIS, J., who dissented.

HEWITT et al. v. HICOCK et al. (Supreme Court of Errors of Connecticut. April 5, 1921.)

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1. Wills 733(10) Bequest of residue for life entitles life tenant to income from testator's death.

A bequest of the residuary estate for life, with remainder over and no time fixed for the commencement of the life use, entitles the life tenant to the use or income of the residue from testator's death.

2. Wills 684 (7)-Rule that life tenant entitled to income from testator's death applies in case of trust.

When it is testator's intention to give the income from his residuary estate to one or several beneficiaries for life and the principal to remaindermen, and such intention is carried into effect by the creation of a trust for such purpose, the rule applies that a bequest of the residuary estate for life, with remainder over and no time fixed for commencement of the life use, entitles the life tenant to the income from testator's death.

Conn.)

(113 A.)

der of net income to expend such sums as should seem necessary to provide comfortable support for her grandnephew and grandnieces, and to educate them, etc., with provision that any portion of the income unused in any year should become a part of the principal, though the trustees did not qualify until two years after testatrix' death, and despite conditions in the will, interest accrued up to the date of the trustees' qualification held not to become income unused in any year to be added to the principal; the trustees must first have had opportunity to use the income before it could be

said to be "unused" within the will.

[Ed. Note. For other definitions, see Words and Phrases, Unused.]

4. Wills 684 (9)-Trustees held required to expend portion of income for support of beneficiary as authorized by will.

Where testamentary trustees had not formed any opinion as to the capacity of testatrix's grandnephew to manage and apply income, which they were required to do before paying over to him a quarter of the remainder of net income after providing for his support and education, their only power and duty toward such grandnephew was to expend for his personal support or benefit such portion of the income of the trust fund, not exceeding one-quarter, as they might deem advisable, in accordance with the will, and, where they did not do so during his lifetime, on his death without issue they were required to divide his share of accumulated income among surviving beneficiaries as provided by the will.

5. Wills 684 (7)—Beneficiary not entitled to income during interval between testatrix's death and appointment of trustees.

Testamentary trustees authorized to expend income for the support and education of an infant grandniece of testatrix cannot expend anything for her support and education during

to determine the construction of the will of Ann F. Stiles, deceased. On reservation by the superior court on an agreed statement of facts for the advice of the Supreme Court of Errors. Superior court advised in accordance with the opinion.

Ann Stiles of Southbury died in February, 1918, leaving a will in which, after several specific legacies, she left the residue of her estate to the plaintiffs in trust. Somewhat abbreviated, the material provisions of the trust are as follows: (h) Out of the remainder of said net income to expend such sum or sums as shall in the discretion of said trustees seem necessary to provide a comfortable support for my grandnephew, Charles Stiles Hicock, and my said grandnieces, Frances J. Hicock, Esther A. Hicock, and Avis French Hicock, and to expend such sum or sums as my said trustees shall deem advisable to enable each of them to secure a good education. (i) Whenever each of said Charles, Frances, Esther, and Avis shall become 21 years of age, if he or she shall appear to my said trustees to be capable of personally managing and applying the income herein provided for, in such case to pay such beneficiary one-quarter of said remainder of the net income; and, if either or any of them shall not appear to my trustees to be so capable, then to expend for the personal support or benefit of such beneficiary such sum, not exceeding said one-quarter of said income, as my trustees shall deem advisable.

(j) If any of said beneficiaries shall die leaving no issue, then the income provided for him or her shall be divided among the survivors or their issue during the continuance of the trust, and the principal thereof shall ultimately be divided among the issue of the remaining beneficiaries surviving at the time of the division, per stirpes. 6. Wills 681 (1) Trustees, rather than (1) Any portion of the income unused in any guardian, obligated to expend income for in-year shall become a part of the principal. fant beneficiary.

the interval between the death of testatrix and the receipt of the fund by the trustees on their appointment.

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Under testatrix's will her, trustees held obligated to expend for the support and education of an infant beneficiary during her minority such sums as they deemed necessary; the infant's guardian not being entitled to receive and expend them.

7. Wills 684 (10)-Trustees bound to pay to beneficiaries capable of managing income their proportionate share of fund.

Life beneficiaries of a trust fund created by will having been considered by the trustees ever since the death of testatrix to be capable of managing and applying the income provided for them in the will, the particular conditions of the will having thus been satisfied, the trustees are bound to pay to each beneficiary her proportionate share of the fund.

Case Reserved from Superior Court, New Haven County; James H. Webb, Judge.

Suit by Harrison Hewitt and others, trustees, against Frances J. Hicock and others

For some reason the estate of Ann Stiles was not settled until May, 1920, and the trustees did not qualify until May 17, 1920. In consequence of this delay, there was included in the property turned over to the trustees after their qualification the sum of approximately $15,000 representing income of the trust estate during the settlement. The questions concerning which our advice is asked relate to the disposition which the trustees should make of this accumulated interest, which will hereafter be spoken of as the "fund." The grandnieces and the administrator of Charles Hicock, who died without issue in May, 1920, claimed that the fund should be treated as income, and divided accordingly. The guardian ad litem of the minor children of Raymond French and Eleanor Nutley Stiles, representing possible remaindermen, who under section (k) of the will would be entitled to the principal in case all of the grandnieces and the grandnephew

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[7] The defendants Frances J. and Esther A. Hicock are of age, and it is found that they have ever since the death of the testatrix appeared to the trustees to be capable of managing and applying the income providThe cases cited, and the manifest intentioned for them in the will. These conditions of the testatrix, require us to hold that the having been satisfied, the trustees are bound