163 Mass. 509 | Mass. | 1895
It is convenient to consider the questions in the order in which they arise in the will itself, using for convenience the numbering of the paragraphs made by the petitioners. In the first paragraph the testator gives the burial lot to his execu
By the fifth paragraph the Brookbank estate is given to the executors and trustees in trust, “to be conveyed in fee simple to my nephew Capt. Charles A. Sawyer of Gloucester, and his descendants, together with the income of ‘ Homestead Fund,’ which is to be used exclusively for the purpose as before stated, it being my earnest desire and request that the Old Sawyer Homestead, which has been in our family one hundred and seventy-five years, with all the land now belonging to it, in one lot, shall be kept in good repair as before requested, and thus be handed down from generation to generation unincumbered by lien or mortgage as a precious heirloom of the Sawyer Family.” The Brookbank estate, which we understand to be the Homestead estate, has been conveyed by said executors and trustees to Charles A. Sawyer in his lifetime. He has since deceased, and the executrix of his will is a party to these proceedings. It is obvious that this trust of $12,000, so far as it is intended for the purpose of keeping the Old Homestead always in good repair, cannot be carried into effect. It is an attempt to create a private perpetual trust. The Homestead estate, having been conveyed to Charles A. Sawyer, his heirs and assigns, became absolutely his property, and the $12,000, the income of which was to be paid to him, his heirs and assigns, also, we think, became absolutely his property, so far as it is a sum intended to be
Of the real estate given to the executors and trustees by the sixth paragraph, some is plainly intended to be cut up into 61 smaller lots and sold for pleasant homes,” and the Large Stone Wharf and the old Webber Wharf seem to be intended to be sold or to be let to the persons who shall build on the lots first mentioned. As to this real estate there is no charitable trust; it is merely a trust for sale. The Chapel lot is a vacant lot in that part of the city of Gloucester called Cove Village. The language of the will is: “ The Chapel lot, having a frontage of about seventy feet on Western Avenue, is to be retained and used when the growth of the village population will justify the building of a larger and more pretentious Village Chapel.” The nineteenth paragraph of the will is as follows: “ I give and bequeath to my Executors and Trustees, the sum of Four Thousand Dollars, in trust, to be safety invested as aforesaid and the the income be allowed to accumulate until such time, when it would seem to be advisable to erect a more commodious Village Chapel in Fresh Water Cove, a portion of the income may be used in purchasing Sabbath School Books; to keep the building and the grounds in good order, and for its general support.” We understand that Fresh Water Cove is the cove on which is situated Cove Village, in which is the Chapel Lot, and that it appears" that in this village, although not on the Chapel Lot,
The seventh paragraph of the will is as follows : “ None of the numerous Wood Lots now owned by me, or hereafter purchased, are to be sold, or in any way disposed of, but to be retained by my Executors and Trustees for the protection and beauty of the Cove Village, now so called but sometime in the near future, to be laid out handsomely with driveways and pleasant rural walks, and then dedicated in the name of 6 Ravenswood Parkl- and then I hope the village will also be called ‘ Ravenswood.’ ”
The fifteenth paragraph is as follows : “ I give and bequeath to my executors and trustees the survivors and survivor of them and their successors in the office the sum of Sixty Thousand Dollars in trust, to be safely invested as heretofore directed, and the income only to be used in developing and beautifying the present ‘ Ravenswood Park ’ grounds by clearing away the dead wood and other incumbrances, and for the purchasing of other contiguous wood-lands, that may be essential in perfecting its present form and completion.” These wood lots are all within the limits of the city of Gloucester. A gift of real and personal property for a public park is, we think, a good public charitable gift. Attorney General v. Abbott, 154 Mass. 323. Pub. Sts. c. 116, §§ 35, 36. St. 1882, c. 154.
The first clause of the thirteenth paragraph is as follows: “ I give and bequeath to my Executors and Trustees, the survivors and survivor of them and their successors in the office, to be held by them in trust, the sum of One Hundred and twenty Thousand Dollars including the note of Twenty Thousand Dollars, now held by them on demand, to be safely invested, as heretofore directed, and the income only of said sum, to be paid semiannually to the Board of Trustees of the Gloucester Lyceum
The first clause of the fourteenth paragraph of the will is as follows : “ I give and bequeath to my Executors and Trustees, the survivors and survivor of them and their successors in the office, the sum of Forty Thousand Dollars, in trust, including the notes of Two Thousand Dollars, already given, to be safely invested as heretofore directed, and the income only to be paid semi-annually to the Treasurer of the Female Charitable Association of Gloucester, (which at present occupy rooms set apart in the Library Building,) to be devoted to the charitable and benevolent objects, for which this society has so long and so cheerfully labored, relieving the destitute and comforting the sick.” We understand that the facts concerning this paragraph are similar to those considered under the thirteenth paragraph, and the construction should be the same.
16. “ I give and bequeath to the Government of the City of Gloucester, the sum of Ten Thousand Dollars, in trust, to be securely invested, and to be called the ‘ Sawyer Drawing and Music Fund,’ and the income only to be used to assist in defraying the expense of competent teachers in these two departments of our Public Schools under the direction of the School Committee. If either or both of these branches at any time should be discontinued, I desire that the income shall then be used to establish a branch or Nautical School, to teach young mariners the art or science of Navigation.
17. “ I also give and bequeath to the said City Government the sum of Three Thousand Dollars in trust, to be invested as aforesaid and the income only to be applied through the hands of the School Committee, in providing medals, to be awarded to meritorious scholars in the High and Grammar Schools, — Courtesy and exemplary conduct to be considered; If the income should be more than sufficient, I desire that the balance shall be used for the purpose of setting out Ornamental Trees on the waysides, or within the School House grounds or other public places, thus beautifying and adding attractions to my native town.
18. “ I give to the City Government in addition to the above legacy One Thousand Dollars to be invested as aforesaid in trust to be called the ‘ Ornamental Tree Fund,’ the income only to be used in setting out trees by the way-side. . . .
20. “ I give and bequeath to the Trustees or the Treasurer of the Rock port Public Library the sum of Four Thousand Dollars in trust, to be safely invested and called the ‘ Sawyer Fund,’ the income only to be used for Books.
21. “I give and bequeath to the Parish Committee and the Treasurer of the First Parish Unitarian Society of said Gloucester, the sum of Eight Thousand Dollars in trust to be called ‘ Parsonage Fund,’ to be safely invested, and the income be allowed to accumulate until such time, as the said officers, and the members of said Society shall deem it best, to provide a parsonage Home for their minister.
23. “ I also give to said Society in trust, as afores4 One Thousand Dollars, the income only to be used in purchasing Sabbath School Books.
24. “ I give to the same Committee and Treasurer of the First Parish Unitarian Society the further sum of Two Thousand Dollars, in trust, to be safely invested and called the ‘ Girls Industrial School Fund,’ and the income only to be paid to the chief manager of said School.”
These legatees, so far as appears, have the lawful power to take the money for the purposes indicated, and the purposes of the several trusts seem to be charitable.
The twenty-fifth paragraph is as follows: “ I give and bequeath to my Executors and Trustees in trust, the survivors and survivor of them and their successors in the office, the sum of Eight Thousand Dollars to be safely invested as before directed, and the income only to be paid semi-annually to my nephew Capt. Charles Abram Sawyer and his heirs.” This legacy should be paid absolutely to the executrix of the will of Charles Abram Sawyer, for the reasons we have hereinbefore given.
The twenty-sixth paragraph is as follows: “ I also give and bequeath to my Executors and Trustees, in trust, the sum of Nine Thousand Dollars, to be invested as aforesaid, and the income only to be paid over to my two other nephews and niece, — namely, Sami. I. Sawyer, Frederic H. Sawyer and Mrs. Agnes H. Coffin, and their heirs in equal proportions, semi-annually.” This legacy should be paid absolutely in equal shares to Samuel I. Sawyer, Frederic H. Sawyer, and Mrs. Agnes H. Coffin.
The forty-eighth paragraph of the will is as follows: “ I give and bequeath to each of the ten following named Institutions and Societies, the sum of Four Thousand Dollars to be safely invested as a ‘Permanent Fund,’ and the income only thereof to be used in such manner as will from time to time best promote the interests and welfare of the said Institutions and Societies,” and then follow the names of ten different societies or institutions.
The fiftieth, fifty-first, and fifty-second paragraphs of the will are as follows:
“ If any of the above named Institutions and Societies, should (¿ease to exist or should cease to perform the duties, offices and charities for which they were created, originally, I then authorize and request my Executors and Trustees to devote such legacy, or income to the use of any other kindred society, so that the same beneficent objects shall be accomplished.
“ If at my decease my Stocks, Bonds, Real Estate or other property, should be depressed in value I hereby authorize and request my Executors and Trustees to defer the payment of these legacies, until such time as in their good judgment it would seem best to dispose of as much of said properties as would be required to pay these legacies in full, not exceeding five years.
“ I also desire and request that the average annual income received from my property shall be considered, if less, an equitable sum to be divided and paid to the several Institutions and Societies, which shall only be paid semi-annually, say in January and July of each year, thus making the payments most convenient: —■ and I would further suggest that a worthy competent person, male or female, who writes a good hand, shall be employed from time to time to keep a book of accounts, showing the separate amounts received from each investment and giving also the separate amts, paid out, and to whom paid.
“ In case I should in my lifetime anticipate any of the above named legacies, by gift to any one of said Institutions or Societies, my will is that such gift shall be taken and considered a payment of the legacy herein given.”
We have had before us a photographic copy of the will. The paragraphs are not numbered in the will. The paragraph numbered 49 in the printed will seems to be a new paragraph ; it is however in the will separated from the paragraph numbered 48
The testator died on December 15,1889. The will was allowed by the Probate Court of the county of Essex, by decree entered on January 20, 1890; and an appeal was taken from this decree
The general rule is that legacies draw interest at the rate of six per cent per annum from one year from the death of the testator. We see nothing in the will whereby the legacies generally áre taken out of the operation of this rule. The provision extending the time of payment of the legacies to certain institutions and societies, we think, was intended to affect only the convenient and most profitable management of the estate, and not the time from which interest should be reckoned. Welch v. Adams, 152 Mass. 74. Spencer, petitioner, 16 R. I. 25. Wood v. Penoyre, 13 Ves. 325. As we have construed this provision it requires the payment of the average annual income in place of interest to such institutions and societies.
The bequest in the 41st paragraph, in trust for the benefit of William Wynn, seems to be within Pub. Sts. c. 136, §§ 24, 25, and this bequest draws interest at the rate of six per cent per annum, simple interest, from the death of the testator.
Instructions accordingly.
The bequest was of “ the sum of Four Thousand Dollars, to be safely invested, and the income only paid over semi-annually to my Coachman William Wynn of Gloucester.”