274 Mass. 273 | Mass. | 1931
In this petition the trustees under the will of Mrs. Annie L. Dexter ask to be instructed whether payments received by them from the estate of Edward Linzee Amory should be retained as capital of the trust fund
Mrs. Dexter died September 29, 1916. In her will she gave the residue of her estate to the petitioners as trustees for successive life tenants with remainders over. The present life tenant, who is one of the trustees, is the surviving husband of the testatrix. Among the assets of the residuary trust is a right to receive income from a trust created by the will of Edward Linzee Amory who died in 1911. Edward Linzee Amory by his will left the residue of his estate in trust, one third of the net income to be payable to his sister Susan Greene Dexter during her life “ and from and after her decease to my nephew Gordon Dexter and to his wife, Annie L. Dexter share and share alike during their respective lives.” Upon the death of the first life tenant, in 1924, a question arose as to the disposition of the share of the income which Mrs. Dexter would have received if living. The question came before this court in Loring v. Dexter, 256 Mass. 273, and it was there decided that the testator in the event which had happened made no disposition of the income of the share which would have gone to Mrs. Dexter if she had survived the life tenant, and it was to be distributed as intestate property of Amory during the life of Gordon Dexter, and as Mrs. Dexter was one of Amory’s next of kin the court directed that one twelfth of the income of the Amory trust be paid to the executor of the will of Mrs. Dexter. The petitioners are receiving the payments of income from the estate of Amory.
Gordon Dexter individually contends that the payments received are income, and the guardian ad litem contends in his answer that the payments should be invested as capital and the income therefrom distributed as income of the Annie L. Dexter trust fund, or, in the alternative, that the payments should be apportioned as between capital and income. As stated in the brief of the guardian ad litem he “ now contends that the payments received from the Amory trustees should be apportioned as between capital and income.”
The guardian ad litem, however, contends that there should be an apportionment between capital and income; that the asset in question is a wasting one; that as the payments to the executor of Mrs. Dexter will cease on the death of her husband an apportionment should be made so as to protect the rights of the remaindermen.
Where an estate, in whole or in part, is of a wasting nature, such as mines, timber lands, leaseholds and unproductive property, it is sometimes directed to be sold or converted, the investment capitalized, and an adjustment made between the life tenant and successive takers. See Kinmonth v. Brigham, 5 Allen, 270; Minot v. Thompson, 106 Mass. 583. This doctrine, however, rests upon the presumed intention of the testator. In Edwards v. Edwards, 183 Mass. 581, the estate comprised unproductive real estate and stocks carried on margin; the trustees were called upon to invest the same in such securities as
There is nothing in the will of Mrs. Dexter indicating that she desired her trustees to apportion the estate between the life tenant and remaindermen, or in any way deprive the life tenant of income for the benefit of the more remote beneficiaries. As we interpret the will she intended that her investments should be retained. In the seventh clause of her will she expressly authorized the trustees to retain “ any investments made by me ” with full authority to sell, exchange or “make partition by deed or by suit of any of the property, whether real or personal, at any time held as part of any trust fund or funds.” This provision means that her trustees are given the power to hold the investments made by her or according to their judgment to sell or exchange them. It shows that if any sale were thought wise, it was to be made by her trustees. We think these directions are inconsistent with the contention that the conversion should be made by any one other than her trustees or made for some purpose not disclosed in her will. The investment now under consideration was not made by Mrs. Dexter; but her intention as to the residue of her estate is clear. The plan of the will indicates that the trustees could hold the investments made by her or in their discretion at any time sell or exchange them or any property held as a part of the fund. So far as her intention is expressed, it gives no support to the application of the doctrine of conver
The authority given the trustees to sell or exchange “ any of the property ... at any time held as part ” of the fund gave to them the discretion when, if at all, any investment should be sold. These words indicate that the doctrine of conversion as contended for by the guardian ad litem is not applicable. In re Pitcairn, [1896] 2 Ch. 199. We are of opinion, therefore, that there are no words in the will of Mrs. Dexter from which it can be inferred that the equitable doctrine of conversion was intended; on the contrary, the language of the instrument reveals a purpose to have the trust administered by her trustees dealing with existing securities and if a change were made it was to be by them acting solely according to their discretion.
Tickner v. Old, L. R. 18 Eq. 422, and Porter v. Baddeley, 5 Ch. D. 542, cited by the guardian, have not been followed in the more recent cases of In re Nicholson, supra,
The trustees are instructed that the payments from the Amory trust are to be paid out as income. Costs as between solicitor and client are to be in the discretion of the Probate Courts
Ordered accordingly.