| R.I. | Sep 28, 1894
We are of the opinion that Wood v. Hammond,
The will of Frank Hammett was proved November 15, 1876; when proved, it related back to the death of the testator on May 26, 1876, and became operative from that date as a special law of descent for the estate disposed of by it, and the rights of all persons designated in it as devisees or legatees are to be regarded as determined by it at that date. Under its provisions, the Home for Friendless Children took, subject to the life estate of Joseph Hammett and the payment of a pecuniary legacy to Stephen Gould of five hundred dollars, a vested remainder in the real and personal estate to the amount, in addition to the property it then held, that it was capable of holding under the limitation in its charter, to wit, to such an amount as would carry its property to the amount of twenty-five thousand dollars, and the city treasurer of Newport took a vested remainder in the excess, in trust, to be transferred and credited to the Poor Fund for Aged Persons.
As the rights of devisees and legatees are to be determined as of the date when the will became operative, that is, at the death of the testator on May 26, 1876, the subsequent amendment to the charter of the Home for Friendless Children on February 11, 1877, by which its capacity to hold property was enlarged to the sum of two hundred thousand dollars, does not affect the question.
Nor, in our opinion, is the question affected by the fact relied on by the respondent that a power to vary the investment in his discretion was conferred on the life tenant. For, *699 while the exercise of that power would have divested the devisees and legatees of their title to such portions of the estate as were sold, they would have been entitled to the same interest in the proceeds of sale or in the property in which those proceeds might have been reinvested.
We are of the opinion that the value of the remainder in the residuary estate of the testator is to be ascertained as of the date of his death to such an amount as may be necessary to raise the value of the property then held by the Home for Friendless Children as of the same date to the amount of twenty-five thousand dollars; that the Home for Friendless Children is entitled to retain such amount and should assign, transfer and convey the excess of said residuary estate above such amount to the complainant, in trust, to be transferred and credited to the Newport Poor Fund for Aged Persons.