Bean v. Commonwealth
186 Mass. 348
Mass.
1904
Check Treatment
Morton, J.

This is a petition for the assessment of damages for the taking, by the metropolitan park commissioners, of certain lands in Medford under St. 1893, c. 407. The date of the taking was November 29, 1899. The land formerly belonged to one James Bean, and consisted of wharf property on Mystic River, with sheds, buildings, etc., where he had carried on for many years a coal, hay and grain business. James Bean died testate June 19, 1899. His will was duly proved, and his daughter *351Charlotte was duly appointed executrix. The petitioners are all the heirs at law, next of kin and devisees of James Bean, and the petition is signed by Charlotte Bean as executrix as well as in her individual capacity. The question is whether Charlotte Bean as executrix has the right to maintain a petition to recover damages for the land taken and to settle the case as seems to her advisable, or whether the petition should be brought and prosecuted by the heirs at law and next of kin. The judge ruled that Charlotte Bean in her capacity of executrix was the only person entitled to maintain the petition, and directed a verdict for her as executrix in the sum of $20,000, the amount agreed upon in settlement between her and the Commonwealth if she had the power to settle, and directed a verdict for the Commonwealth as against the other petitioners. The case is here on exceptions by three of the petitioners to these rulings, and also to certain rulings in regard to the exclusion of evidence which become immaterial if the ruling that Charlotte is the only person entitled to maintain the petition is right.

We think that the rulings were right. Without reciting here the provisions of the will, it seems to us that the effect of them is to vest the property in Charlotte Bean as trustee by virtue of her appointment as executrix. She is not named in the will as trustee and has not been so appointed by the Probate Court. But it is not necessary to constitute her a trustee that she should have been so named or appointed. If the effect of the provisions of the will is to subject the property in her hands as executrix to certain trusts to be carried out by her she will be deemed to hold the property as trustee by virtue of her appointment as executrix. Carson v. Carson, 6 Allen, 397. And we think, as already observed, that such is the effect of the disposition of the property by the will. She is given power to carry on the business in her uncontrolled discretion at the expense of and with funds belonging to the estate for her own benefit for five years or such shorter time as she may choose, and is given the absolute and entire beneficial use of the property in question subject only to the payment of taxes, repairs and insurance during that time. At the end of five years she is directed to sell the property and divide the proceeds equally amongst the testator’s children, including herself, the issue of any deceased child taking by right *352of representation the share which that child would have taken if living at the time of distribution. And if she should die before the expiration of the five years then the property is to be sold as soon as may be and the proceeds distributed as above. In other words, as it seems to us, the property is given to her in trust to use it for her own benefit for five years or less as she may elect, and at the expiration of five years to sell it and divide the proceeds amongst those who shall answer the description. If the property had been put by the testator into the hands of a third person with directions to permit his daughter Charlotte to have the entire and uncontrolled use and benefit of it on the terms named for five years with the right to carry on the business with capital furnished by him at the risk of the estate, and at the end of five years to sell and dispose of it and divide the proceeds amongst his children and their issue, there can be no doubt, we think, that such person would have taken and held the property as trustee. It can, of course, make no difference in principle that the property was put into the hands of the daughter instead of a third person, and it is more commensurate with what is required of the trustee that the fee should have been intended to pass to and should be held to have passed to her, than that the will should be construed as simply directing the trustee to sell and distribute the proceeds with the result that the fee would vest in the heirs at law subject to be divested by a sale. It is well settled that trustees take that quantity of estate which the exigencies of the trust require. Sears v. Russell, 8 Gray, 86. Cleveland v. Hallett, 6 Cush. 403. We are of opinion that the petitioner Charlotte took the fee as trustee, and that the petition could only be rightly brought and prosecuted by her in her capacity of executrix.

Exceptions overruled.