169 Mass. 216 | Mass. | 1897
This is a bill for instructions, brought by the trustees under the will of John W. Trull. The will is dated November 11,1858. At that time John W. Trull was a widower, between seventy-five and seventy-six years of age, having been bom on May 12, 1783. He died on April 12, 1867. He
A distinction should be made between real and personal estate. Strictly speaking, the personal estate, or that which should be regarded as the personal estate of this one half of the trust fund, should be paid to the administrator with the will annexed of the estate of said John T. Heard, who, after paying the debts of the estate, if there are any, and the expenses of administration, should pay it to the administrator of the estate of Almira P. Heard, who, after paying the debts of this estate, if there are any, and the expenses of administration, should pay it to J. Theodore Heard. The administrator of neither of these estates has been made .a party to the bill, and we do not know that there are such administrators in existence, but, if deemed necessary, they can be appointed. One half of the real estate can be conveyed directly to J. Theodore Heard. It may be left for the
A majority of the court think it manifest, on reading the will, that the testator never intended to give to Mrs. Eldredge out of the residue of his estate anything more than the net income of it during her life. He gave this residue in trust, but he gave to her no power of disposition over the principal of the trust, either by deed or by will. At and after her decease he gave the “trust premises to her issue, equally to be divided between and among them, if more than one, in fee simple, the children of any deceased child of my said daughter to take the parent’s share by representation.” Such issue, if any had survived Mrs. Eldredge, would have taken the “ trust premises ” directly under the will of John W. Trull, and not as heirs or distributees of the estate of Mrs. Eldredge. If Mrs. Eldredge left no issue surviving her, it cannot be said that the testator had no purpose to express concerning the disposition of the “ trust premises.” He directed that one half of the “ trust premises ” should go to his stepson and his heirs, and the other half should be divided among his heirs at law “ as though I died intestate.” There is no indication in the will that the testator contemplated the possibility of marrying again and having other children than Mrs. Eldredge. He made no provision for that, and evidently did not regard it as probable. He may or may not have known that, if he married again and had a child by the marriage, the will ipso facto would be revoked, but he may be presumed to have known that at the time the will was made Mrs. Eldredge was his only heir presumptive, and that if she survived him she would, unless he married again and had a child, be his only heir at the time of his death.
After giving Mrs. Eldredge his household furniture, etc. absolutely, and the improvement during her life of his dwelling-house in Beacon Street, Boston, and making a pecuniary provision for his stepson and the son of his stepson, the testator established the trust of the residue and expressly included in the trust property the reversion of the dwelling-house. Whether Mrs. Eldredge
It is argued that it is a well established rule of law that, when a testator in his will refers to his heirs at law as persons to take any part of his estate, he is presumed to mean his heirs to be determined as of the time of his death, unless it plainly appears that he intends that the heirs should be determined as of some other time. This rule, it is said, was originally established on the ground that the law favors vested rather than contingent remainders. But since contingent remainders in property are within certain limits protected by the law, and are now held to be alienable, descendible, and devisable in the same manner as vested interests, and testators are permitted to make such lawful disposition of their property as they see fit, there is no reason why their intentions as expressed in their wills, so far as the law permits, should not specifically be carried into effect. The tendency of the modern cases is therefore to put the reason of the rule, not on any fondness which the law has for vested over contingent interests, but upon the fact that heirs at law by the very meaning of the words are usually those persons who take inheritable real property immediately on the death of the owner if he dies intestate. When, therefore, these words are used in a will without anything to modify their meaning, it reasonably may be taken that they mean those persons who would have taken the real estate of the testator as of the time
In the present case, not only particular phrases of the will, but its general purport in the event which has happened and which the testator must have contemplated, seem to us inconsistent with any intention that Mrs. Eldredge, if she shall leave no issue surviving her, should take as sole heir one half of the trust property. The effect of such a construction would be that Mrs. Eldredge in her lifetime could have transferred this one half to
The heirs of John W. Trull, to be determined as of the time of the death of Mrs. Eldredge, in our opinion, take this one half as if he had died intestate when Mrs. Eldredge died. The principal of the trust fund is a mixed fund of real and personal estate, and the persons who take both the real and the personal estate on the death of Mrs. Eldredge under our decisions must be the same, and they are those heirs of the testator living when Mrs. Eldredge died who would inherit real estate. Fabens v. Fabens,
The trustees necessarily must have the power to sell and convert into money the personal property unless the persons interested consent to a division of it if they are more than one, and. the fractions are such that the different kinds of property can-' not be specifically divided. With reference to the real property, although the power given to the trustees of the will to sell it is ample, yet real estate always can be conveyed in fractional undivided parts, and we think that this power to sell was primarily intended to be used for the purpose of investment and reinvestment while the trust was active. Now the only duty of the trustees is to settle their accounts and divide, convey, and pay over the principal of the trust property according to the directions of the will. Whether authority could be given to them to sell the real estate and divide the proceeds if this were found reasonably necessary, need not now be determined, and there are no sufficient allegations in the bill as it stands on which this question can be decided. By the decree in this case it will be determined who the persons are who take the principal of this trust property, real and personal, and if there are reasons why the real estate cannot or should not be conveyed to them in fractional undivided parts, but should be sold by the trustees and the proceeds divided, a bill can be brought to determine what authority the trustees have, or what authority the court can give them. To such a suit all persons having an interest in the property, or their legal representatives, if any have died since the death of Mrs. Eldredge, should be made parties.
The question of costs has been argued by the counsel of J. Theodore Heard. This is not a case in which taxable costs should be allowed against any party. If application should be made to a single justice for the allowance of costs as between solicitor and client out of the fund, it then may be considered by him whether any such costs should be allowed, and, if so, whether they should be charged upon the whole fund or only upon the one half which goes to the testator’s heirs at law. A decree should be entered by a single justice in accordance with this opinion.
So ordered.