| Mass. | Jun 2, 1898
The question here presented was left undecided in the former consideration of this case. Heard v. Read, 169 Mass. 216" court="Mass." date_filed="1897-10-02" href="https://app.midpage.ai/document/heard-v-read-6426090?utm_source=webapp" opinion_id="6426090">169 Mass. 216. We are of opinion that the trustees took, either in fee or for the life of Mrs. Eldredge, the legal estate in the real property given in trust by the testator. Sears v. Russell, 8 Gray, 86. The trust is, “ To receive and collect the income arid produce thereof, and, after deducting all needful and proper costs, charges, and expenses, to pay the residue of said income from time to time into the proper hand, or upon the written order of my said daughter, Mrs. Elizabeth Eldredge, for her sole and separate use, free from the control or interference of any husband or liability for his debts or engagements.”
■ During the life of' Mrs. Eldredge the remainder after the termination of her equitable life estate was contingent, whether that remainder be legal or equitable, but on her death the remainder vested one half in John T. Heard and the other half in the heirs of the testator, determined as of the time of Mrs. Eldredge’s death. • Whether the trustees still hold the legal estate in the real property, or it is vested in John T. Heard and the heirs of the testator, is a question which we have not found it necessary to decide. If it was the intention of the testator that the power to sell the real estate should remain in the trustees after the death of Mrs. Eldredge, or that the trustees after her death should be charged with the duty of making sale or partition of the real estate, then we should be of opinion that the trustees took the legal estate in fee, and that this estate did not on her death immediately vest in John T. Heard and the. heirs of the' testator. If such was not the intention of the testator, the question whether the legal estate is still in the trustees is one of more difficulty.
The power given to the trustees is to “ sell any and all real estate, of which the trust premises shall be at any time composed” and the power given to the trustees with reference to investments is in much the same terms, to wit: “ to invest, reinvest, and change any and all property of which the trust premises shall be at any time composed.” Powers of sale of
If Mrs. Eldredge died leaving issue surviving her, then the testator gave the trust premises “ to her issue, equally to be divided between and among them,” etc. If she died leaving no issue surviving her, then the will provides that “ the trust premises shall, at her decease, be divided into two equal parts or portions, one of which parts shall go to and be held by the said John T. Heard' and his heirs in fee forever, and the other part shall be divided among my heirs at law, as though I died intestate.” This language does not indicate that the testator intended that the real estate after Mrs. Eldredge’s death should be converted into money by the trustees, and the money paid to the persons entitjed to it. It rather indicates that the trust premises, so-far as they consisted of real estate, should specifically go in fee simple either to the issue of Mrs. Eldredge or to John T. Heard and the testator’s heirs at law, to be divided as directed by the will.
We are of opinion that the power to sell real estate was given for the purpose of changing investments of the trust property, and of performing the duties of the trust, and that when the trust terminated' by the death of Mrs. Eldredge this power ceased to exist, and that the trustees have now no power under the will to sell the real estate for the purpose of dividing the
Whether the persons interested have a remedy in the Probate Court under St. 1898, c. 65, has also not been considered.
Decree accordingly.