171 Mass. 401 | Mass. | 1898
This is a bill for instructions by trustees under a trust deed of Francis B. Hayes. The deed gave certain property to the plaintiffs in trust to the use of such of certain persons and corporations as Hayes might appoint by will. Hayes died on February 9, 1895, and by his will and codicil appointed pecuniary legacies to different persons and corporations, and the residue to the Massachusetts Horticultural Society. The will and codicil were proved after a contest, on May 17, 1897. Then there was a contest whether the property was assets to be administered by Hayes’s executor, or was to be distributed by the plaintiffs, which was decided for the plaintiffs on January 25, 1898, and on February 5, 1898, the legacies other than the residue were paid. The question is whether they are entitled to any, and, if any, what interest at the expense of the residue.
The first question raised by the bill, although hardly touched in the argument, is whether the appointment speaks from the death of Hayes or only from the probate of the will. Of course it speaks from no earlier date. Marlborough v. Godolphin, 2 Ves. Sen. 61, 78. It is very clear that the appointment must be by a valid will, and that the only way in which this court can know that a given instrument is a valid will is by its having been admitted to probate. “A will, without the probate, is of
We are of opinion, further, that the words which we have quoted are not overridden or made nugatory by the provision in the same deed that, in transferring the trust fund under the appointment or in default of it, “ the trustees shall take such time, not exceeding three years from the death of said Francis B. Hayes, as they may think best, for the most judicious conversion of the trust estate and to prevent the sacrifice thereof.” This provision suspends liability to action but goes no further. Bartlett, petitioner, 163 Mass. 509, 521.
As the appointees are to be treated as if they had been entitled to be paid at Hayes’s death, we are of opinion that they must be paid interest from that date. Assuming that the delay of payment was justified, and within the permission given by the trust deed, that does not exonerate the estate from paying interest. It is not true here, as stated in Crickett v. Dolby, 3 Ves. 10, 13, and Donovan v. Needham, 9 Beav. 164, 167, that interest is to be given only for default of payment, or as stated in Earle v. Bellingham, 24 Beav. 448, 450, that it is payable
Decree accordingly.