184 Mass. 103 | Mass. | 1903
The testatrix, by her will, gave $30,000 to trustees, to hold and invest and pay the net income thereof to Charlotte S. Averill for life, and the remainder to others, $15,000 upon the same terms to the same trustees for the benefit of Amy S. Perry for life, with remainder over, $5,000 absolutely to Caroline A. Thompson, and the residue to Charlotte S. Averill. The estate is insufficient to pay these legacies in full. If the estate had been sufficient, one life tenant would have been entitled to the income of the fund of $30,000 from the death of the testatrix, the other to the income of the fund of $15,000 from the same time, and the trustee would have had the principal of each of these funds to be held for future payments. Sargent v. Sargent, 103 Mass. 297, 299. Westcott v. Nickerson, 120 Mass. 410. Kinmonth v. Brigham, 5 Allen, 270, 278. Ayer v. Ayer, 128 Mass. 575. R. L. c. 141, § 24. Caroline A. Thompson also would have been entitled to $5,000 at the expiration of a year from the death of the testatrix. These are all general legacies, and because of the deficiency of assets they abate in • equal proportions. Bancroft v. Bancroft, 104 Mass. 226. Babbidge v. Vittum, 156 Mass. 38. In considering these proportions we must take into account the fact that each of the funds held in trust is to be increased by the income that it would earn in one year, in order to ascertain the amount that would belong to it at the time when the $5,000 would be payable to Caroline A. Thompson. If the income on these funds were computed at the rate of four per cent per annum, and if the estate had been sufficient to pay these legacies in full, the first trust fund with its accrued income at the end of a year, would have been $31,200; the second trust fund with its accrued interest would have been $15,600, and the legacy to Caroline A. Thompson would have been $5,000, making the aggregate $51,800. At the end of a year from the death of the testatrix, when the estate was so far settled that the money could be paid over to the legatees, the amount available in the hands of the executor was $47,600. . Estimating the income on this basis, the several legatees are entitled to share this sum in the following proportions, namely: the trustee is to have of it for the first fund; he is to have *■ of it for the second fund, and Caroline A. Thompson is to have of it.
In the present case it does not appear that the assets from which the trustee will be paid were invested as income-producing funds, so that the actual income of either fund can be ascertained. We are therefore of opinion that the income which was received by the executor while he was administering the property, should be treated as a part of the general assets for division. The case will then stand for a hearing upon the question what income the trust funds would have produced during the year immediately following the death of the testatrix, if they had been invested by a trustee, and when that is determined, the proportions in which the whole balance should be divided will be ascertained upon the principles stated above. If income would have been
iSo ordered.