Chapin

148 Mass. 588 | Mass. | 1889

Morton, C. J.

The testator, who died in 1880, by his will devised all his real estate to trustees, upon trust to pay the net income to his children and the issue of any deceased child by right of representation. The will further provides, that if, at the expiration of ten years, a majority of his children then living shall desire it, the trustees shall sell the real estate and shall divide the net proceeds equally among all his children then living and the issue of any deceased child by right of representation, and until such sale is made the trustees shall hold the estate and divide the net income in manner aforesaid. And if no sale is made during the lives of his children, then at the death of the surviving child the estate shall be sold, and the net proceeds divided among his grandchildren per stirpes.

It is perfectly clear that the testator intended that the trust should continue for at least ten years after his death. There is nothing in the will which suggests that he contemplated an earlier termination of the trust in any contingency. It is also clear that the children now living have a contingent interest only in the trust fund, and that those who will ultimately take cannot be determined until the period of distribution arrives. The trust cannot be terminated, in whole or in part, without defeating the intentions of the testator.

The testator owned at his death an undivided half of a wharf estate in Boston. Upon the petition of his cotenants, partition of this estate was made under our statutes, and under the order of the judge of probate the commissioners appointed to make partition sold the whole of the estate, being of opinion that the estate could not be advantageously divided, and paid to the trustees the proceeds of one undivided half. The rule is well settled, that in such case the proceeds of the real estate are to be held upon the same trusts as those upon which the real estate was held. The money takes the place of the real estate, and is affected by the same trusts as if it had remained specifically real estate. Holland v. Cruft, 3 Gray, 162. Simonds v. Simonds, 112 Mass. 157.

In the case at bar, therefore, the claim of some of the children that the proceeds of the wharf property should now be divided cannot be sustained. The period of distribution fixed by the testator has not arrived, and there is no certainty that the children now living will be living and entitled to a share of the trust fund when that period does arrive.

Decree affirmed.