| Mass. | Feb 24, 1891
The following opinion was written by Mr. Justice Devens, and after his death was adopted as the opinion of the court by the Justices who sat with him at the argument.
The first of these bills is one for instructions, brought by the executors and trustees under the will of Mrs. Mary D. Whitney, which in its fourteenth clause provided for the formation of a fund from the residue of her estate, after the distribution and division had been made of a portion of the estate as specially directed. By the will, this fund was “ to be well invested, the income from which I desire my sisters to apply to the relief
The instruction thus requested is not as to the duty of trustees who in the administration of a trust estate find themselves embarrassed by difficulties. The principal requisites for a bill for instructions have often been said to be the possession of a fiduciary fund of which some disposition is necessarily to be made presently; conflicting claims, or the probability thereof; and the existence of no other means of determining rights or demands so as to protect a trustee from the risks of future liability or controversy. Putnam v. Collamore, 109 Mass. 509" court="Mass." date_filed="1872-03-15" href="https://app.midpage.ai/document/putnam-v-collamore-6416866?utm_source=webapp" opinion_id="6416866">109 Mass. 509. Muldoon v. Muldoon, 133 Mass. 111" court="Mass." date_filed="1882-06-27" href="https://app.midpage.ai/document/muldoon-v-muldoon-6420639?utm_source=webapp" opinion_id="6420639">133 Mass. 111. The question proposed by the bill is rather an inquiry how the Probate Court shall perform its duty, and what burdens or securities it shall impose on the trustees. In Muldoon v. Muldoon it was held that an administrator could not maintain a bill for instructions as to the distribution of the proceeds of real estate sold by him under license from the Probate Court, until the surplus remaining on the final settlement of his accounts in that court had been ascertained. It was there said, “ The settlement of his accounts and a decree of distribution in the Probate Court will determine all the conflicting claims to such funds that have arisen, or may hereafter arise, and effectually protect him from the risks of future liability.” The superintending and revising power over the probate courts is with this court as the Supreme Court
The second bill is brought by the sisters of Mrs. Whitney, to whom the income of the residuary fund held by the trustees is to be paid, and who are to disburse it in charity. The first inquiry is for instructions as to their duty to give bonds to the judge of probate according to the Pub. Sts. c. 141, and, if so, whether they are by the terms of the will exempt from giving bonds. The remarks already made show decisively that instructions upon this point should not be given. When the first class of trustees are ready to pay over income to the sisters who are to act as the almoners of the charity of the testatrix, it will be for the Probate Court to determine what bonds it may properly demand of them, if any, under the statute, — whether they shall be wholly relieved therefrom, or what shall be the character of their obligations, if the court shall determine that they are to be placed under any in the expenditure of the fund.
The second inquiry in the second bill is as to the mode in which the plaintiffs shall administer the fund when they receive it. This question is premature. However reasonable may be the expectation of the plaintiffs that they will receive a considerable sum as the income of the residuary fund, until they do receive it they cannot ask how it shall be dealt with. When the fund is in their hands, their immediate duties arise, but not until then. The court has. often declined to give instructions as