This case comes up by appeals from decrees of the Probate Court entered upon two petitions, one by the trustees under the will of George W. A. Williams asking for instructions as to the disposition of a fund representing the proceeds of the sale of real estate which had been occupied as a home by George Albree in accordance with article twenty-two of the will; the other a petition by George Albree, executor of the will of his deceased wife, Georgianna
The will of George W. A. Williams was executed February 24, 1887, when the testator was sixty-seven years old. He died March 21, 1891, survived by his widow, Harriet C. Williams, and by a son, Joseph B. Williams, an unmarried daughter, Helen L. Williams, and a daughter, Georgianna Albree, wife of George Albree — the children by his first wife, Susan L. Williams, who died in 1868. Harriet C. Williams had no children. Georgianna Albree left surviving her one child, George Norman Albree, and died testate in 1894. Her husband was executor of and sole legatee under her will. Harriet C. Williams died testate in 1920, leaving her estate to her blood relations, to two of her personal friends, and to two nieces of her deceased husband. Helen L. Williams died testate in 1925. Her nephews, George Norman Albree and Francis C. Williams, are executors of her will, and she left the residue of her estate in equal shares to her niece, Constance Williams, her nephew, George Norman Albree, and her grandniece, Helen B. Williams, daughter of Francis C. Williams. Joseph B. Williams died testate in May, 1928, after the petition by the trustees was filed, leaving three children, Pearce P. Williams, Constance Williams and Francis Williams. Pearce P. Williams is the executor of the will of his father, who left all of his estate to his daughter Constance. After the death of Joseph B. Williams, the trustees amended their petition, seeking instructions as to the disposition of surplus income and interest accruing after his death.
By the twenty-first article of the will of George W. A. Williams the residue of his estate was given to trustees with instructions to pay the income in fife payments in stated sums to his wife, son, daughters, sister, brother, widow of brother, three nieces, and a person not related. By the twenty-fifth article of the will an annuity was given to the testator’s grandson, Pearce P. Williams. Of these annuitants, this grandson, the widow of the testator’s brother, and a niece now survive. The aggregate of the annual payments
1. Upon the petition for distribution the judge found that the trust estate was largely in excess of the principal amount needed to support the three remaining annuities; that $75,000 was adequate for that purpose; and ordered that all of the trust estate in excess of $75,000 be converted into cash and distributed, less allowances to counsel and charges of trustees, to the personal representatives of the testator’s heirs at law determined as of the date of his death,
In the twenty-eighth article of the will the testator fixed the date of the death of the last annuitant named therein as the time when the trust estate should terminate. There is no provision in the will indicative of a purpose that it should end at an earlier date. No sufficient reason appears for termination of the trust as to a part of the estate now. The testator’s expressed intention must be controlling. Schaffer v. Wadsworth, 106 Mass. 19, 24. Claflin v. Claflin, 149 Mass. 19, 22. Young v. Snow, 167 Mass. 287. Forbes v. Snow, 245 Mass. 85, 93. In Sears v. Hardy, 120 Mass. 524, 541, 542, there was an intestacy as to the principal of the trust fund with a resulting trust in favor of the testator’s son, and the order therein made for a partial termination of the trust was not inconsistent with the terms of the will. The decree of the Probate Court ordering a partial termination of the trust and distribution of principal is reversed. It is unnecessary at the present time to decide as of what date legal
2. The twenty-seventh article of the will provides that in case of a deficiency of the annual income from the principal trust fund the annuity to the testator’s widow should be paid in full, and the other annuitants should bear and suffer the deficiency fro rata. It also provides that if there should be a surplus of income before the falling in of any of the annuities, it should first go to make up earlier deficiencies in certain annuities, and any surplus then remaining should in the discretion of the trustees be retained against the event of like future deficiencies or distributed to the testator’s wife and children in equal shares. Further provision is made for the time when the amount of income and interest received from the trust fund, increased from any cause, shall be more than sufficient to pay the annuities: such income and interest shall as often as semiannually be divided and paid over to the testator’s wife, son, and two daughters during their joint lives, and to the survivors and survivor of them share and share alike. In 1917, on petition of the trustees under the will of George W. A. Williams for instructions as to their duties under the twenty-seventh article, they were instructed that the surplus income should be divided and paid over to the testator’s wife, son and daughter then living, share and share0alike, and that future payments of such surplus should be made to the same persons during their joint lives and to the survivors and survivor of them share and share alike. Joseph B. Williams was the last survivor. The decree of the Probate Court ordered that the surplus income of the trust created under the twenty-first article of the will, accruing after the death of Joseph B. Williams and not needed for the payment of outstanding annuities and the administration of the trust fund, be paid, one third to the administrator with the will annexed of the estate of the testator’s deceased wife; two ninths to the executor of the will of Georgianna Albree, the deceased daughter; two ninths to the executors of the will of the deceased daughter Helen L. Williams; and two ninths to the executor of the will of the testator’s deceased son, Joseph B. Williams.
3. Article twenty-two of the will provides that the trustees, immediately after the lapse of five years from the testator’s death, shall purchase a dwelling house for a sum not exceeding $12,000 out of the principal trust fund in their hands, in such city or town as the testator’s son-in-law, George Albree, may desire, for the free use and occupation of himself and his wife, Georgianna, as a home during their joint lives and the life of the survivor of them, free from all rent and remunera
In 1900 the trustees bought a lot of land in Concord, Massachusetts, upon which they built a house at a total cost of $12,000; which was occupied by George Albree until 1924, when, at his request and by authority of the Probate Court, the trustees sold it, and they now hold the net proceeds of that sale. By decree of the Probate Court entered in 1925 on petition for instructions the trustee was directed to hold the proceeds of the sale of this real estate as a special fund and pay the net income thereof until the date of the death of Helen L. Williams, one half to her executors and one half to Joseph B. Williams, and from and after that date to pay the net income to Joseph B. Williams who was the last surviving child of the testator, until the further order of the court. Before the trustees provided a house for Albree he entered into an agreement under seal with them that the house and land should be held as an investment of $12,000, as provided in the twenty-second article of the will and upon the trusts therein stated, and that the property was to be accepted by him in full satisfaction of his rights under the twenty-second article of the will. In the petition filed by the trustees in 1924 for authority to sell the property, they stated that the sale was necessary and expedient for the reason that Georgianna Albree was dead, and George Albree had notified them that he no longer desired to occupy the premises as a home and wished the same to be sold; that they had an offer for its full value, and that it was desirable that the proceeds be
Testimony was introduced tending to prove that Albree requested the sale because of personal reasons connected with illness of a housekeeper and cook, because the house needed to have a substantial sum of money expended on it, and because he did not want to be at the expense of maintaining so large an establishment. In a letter to the trustees he stated that he no longer desired to live in the house but wanted it sold, and that he claimed that the income of the net proceeds of sale should be paid him for life, but that his request for sale was in no way conditioned upon what the court might decide as to the disposition of the proceeds. The Probate Court decreed that the trustees are not to purchase a house for Albree pursuant to article twenty-two of the will, but that the fund received by them from the sale of the house now in their hands be turned over to and added to the principal trust fund in their hands to be disposed of as a part thereof as provided in article twenty-eight of the will. No authority is expressly given the trustees to buy or build more than one house for Albree except in the case of fire. He was not given a life estate in a fund of $12,000, but a right to occupy a house furnished by the trustees. No power was given the trustees to pay him the income of the fund that was made available for the building of a house or to pay him the income from the proceeds of the house when sold. The terms under which he accepted the house built for him and his decision after many years of occupation to give up living in it, with a request that the trustees sell the property, when considered in the
The decree on the petition of the trustees is affirmed. On the petition of George Albree and others for a partial termination of the trust and distribution, the decree is reversed and a decree is to be entered dismissing the petition. In each case costs as between solicitor and client are to.be in the discretion of the Probate Court.
Ordered accordingly.