144 A. 523 | N.H. | 1928
Although the town of Derry refused to accept the trusts created by the clauses of the will now under consideration, the effect of this action was merely to leave their execution to other trustees. The twenty-fifth item specifically provides that if the town shall refuse or neglect to accept the trust thereby created, the executors *424
shall act as trustees. Suitable trustees will be appointed to carry out the provisions of the twenty-sixth item, since "equity never allows a legal and valid trust to fail for want of a trustee." Campbell v. Clough,
"Ordinarily, in the absence of any provision in the will as to the time of payment, pecuniary legacies are payable at the end of the year from the death of the testator, without interest; but if not then paid, they bear interest after the expiration of the year." Kingsbury v. Bazeley,
The foregoing rule applies only to pecuniary legacies. Specific bequests are governed by a different principle. "In the case of a specific legacy, that is, a legacy of any specific article or thing, the income, profits, or produce of the article after the decease of the testator, goes to the legatee without regard to the time at which the article is to be delivered to the legatee." Loring v. Woodward,
a. There is no apparent reason for excluding the legacy given by the twenty-fifth clause of the will from the operation of the ordinary rule, and the executors are, therefore, advised that it bears interest from one year after the testator's death.
The effect of the twenty-sixth item was to give both specific bequests of securities and a pecuniary legacy. It was clearly the purpose of the testator that the trustee should receive, in addition to certain stocks, a substantial sum of money. It must be presumed that he had in mind the well-known rule that legacies are payable within a year after the death of a testator, and that he expected his executors to comply with the law and pay this legacy when it was due. At the expiration of the year it became the duty of the executors to pay the legacy, and the relative rights of the hospital and the remaindermen became fixed as of that date. After that time, so long as the executors retained in their possession the fund created by this bequest, they held it in trust for the proposed hospital. Tilton v. Society,
b. In accordance with the foregoing principles, the executors are advised that they should pay over to the trustee who shall be appointed to carry out the provisions of item twenty-six, any dividends which they may have received since the death of the testator on the securities named in said clause. Jewell v. Appolonio,
c. The answer to the third question of the executors has also been indicated above. For the purpose of ascertaining the amount of the pecuniary legacy given by item twenty-six, the value of the stocks is to be computed as of January 11, 1921. No deduction from this *426 amount is to be allowed by reason of any enhancement in the market value of the stocks since that date. If, in the meantime, there has been a decrease in the value of the securities, it is plain that the funds of the estate cannot be used to make up the loss, since this would result in casting the burden unjustly upon the residuary legatees. Whether in such a situation the executors should be held personally liable for the loss is a question for the probate court to pass upon in the first instance.
Case discharged.
All concurred.