60 A. 240 | R.I. | 1905
This petition is brought by the trustees under the will of Richard S. Greenough, and certain parties who have agreed with them to purchase a piece of real estate devised to said trustees by said will, to obtain a construction of the same.
The trust estate consists of considerable personal property and one lot of land in the city of Newport containing about 2,600 square feet, upon which is a studio building which was formerly used by the testator but has long been unoccupied and unproductive. The land and building are estimated for taxation at $2,300, and the agreement of sale between the parties is for $2,600. Doubts having arisen as to the power of the trustees to sell, the parties have agreed in stating a case for the decision of this court.
The will gives the bulk of the testator's estate to trustees for the benefit of his three grandchildren, and in defining the powers of the trustees provides: "And I do hereby declare that it shall be lawful for the trustees hereby appointed, and other, their successors, to vary and change from time to time as they may think expedient, investments existing under this my will, provided that all moneys liable to be invested, be invested in such manner and on such security as is required by the statutes of Massachusetts concerning the investment of trust funds."
Another provision is: "In case of the death of any granddaughter that is married, if she leaves issue, her portion shall *582 be paid to the guardian of her child or children, to be held in trust for its or their benefit," c.
The rule of law applicable to a case like this is approved by this court in Ames v. Ames,
It can not be doubted that the power to "vary and change" investments involves the power to sell the old and to purchase new. This is the obvious and common method of exercising such a power, and the testator must have contemplated that such should be the action of the trustees when they considered a change expedient. Purdie v. Whitney, 20 Pick. 25; Boston SafeDeposit Trust Co. v. Mixter,
The only debatable question in the case is whether this piece of real estate was embraced by the testator in the word "investments."
"To invest means to lay out money or capital in business with the view of obtaining an income or profit, as to invest money in bank stock; to employ for some profitable use; to convert into some other form of wealth, usually of a more or less permanent nature." 17 Am. Eng. Ency. L. 2nd ed. 420.
An investment is some form of property into which money has been put with the intention of holding it for gain or increase or for permanent safe-keeping. In its common meaning the word "investment" involves the idea of intended profit, and ordinarily the word implies a certain measure of permanence in contrast to a speculation or temporary venture. A temporary deposit of money subject to call, though some interest is received for it, is not an investment of the money in the usual sense of the word (Law'sEstate, 144 Pa. St. 499, 507), though it has been held to be so in a broader sense. Jennings v. Davis,
As applied to the property of a testator, unless qualified by the context, the word "investments" may include his whole estate except cash on hand. It is said by Selden, J., in Parker Mills
v. Commissioners,
Again, the provision for the distribution of the estate in portions includes this parcel as well as the personal property, and the word "paid," as designating the mode of distribution in a certain contingency, implies that the testator had in mind not land, but money or its equivalent, as the ultimate form which his estate should have when the time for division came. This lot of land, on account of its size and the character of the building upon it, is incapable of division in specie, and must be sold to be distributed in the form of money. Similar directions to appropriate or divide have been held to authorize the sale of real estate. Livingston v. Murray, 39 How. Pr. 102; Going
v. Emery, 16 Pick. 111-2; Ames v. Ames, supra; Lippincott,Exr., v. Lippincott,
It is argued by counsel for the vendees that the provision as to new investments is restrictive of the power of the trustees as to what they may sell, and confines them simply to the investment of money on hand, but the plain meaning of the *584 clause is only that the trustees shall be restricted as to what they shall buy. The only investments which they can "change and vary," in the first instance, are investments which came to them at the death of the testator. If the testator's estate as he left it can not be changed, no investments can be made by the trustees at all. To procure "moneys liable to be invested," some portion of the estate as left by the testator must be sold; for the whole income of the estate is disposed of by the will.
We conclude, therefore, and so advise the trustees, that they have an implied power under the provisions of the will to sell this parcel of real estate.
