Marshall v. Caldwell

125 Mass. 435 | Mass. | 1878

Gray, C. J.

The will manifests the testator’s intention that from the residue of his estate, real as well as personal, his children should receive an income annually during their lives, and after their death the remainder should go to his grandchildren, and that, if necessary to carry out this intention, the real estate should be sold by the trustees. Equity will not allow the trustees, under the discretionary power conferred upon them as to the time and manner of sale, to defeat the intention of the testator, by unreasonably postponing the sale, tó the detriment of those who are entitled to the income for life. Lord Hardwicke, in Hawkins v. Chappel, 1 Atk. 621, 623. Sir William Grant, in Walker v. Shore, 19 Ves. 387, 391, 392. Lord Brougham, ir Prendergast v. Prendergast, 3 H. L. Cas. 195, 219.

Nineteen years have elapsed since the death of the testator, and the justice of this court before whom the case was heard has found, as matter of fact, that the real estate remaining unsold has fallen in value during the past few years, and is not only wholly unproductive, but the amount of the annual taxes thereon has been paid out of the income of the rest of the crust fund; and that there is an irreconcilable disagreement between the two trustees as to the propriety of selling it, though both of them testify that it can be sold by public auction for a greater sum than the amount at which it was appraised at the time of the death of the testator, and there is nothing before us to show that it is likely to rise in value. The judge also finds that a reasonable and proper management of the estate and the interest of the eestuis que trust require a sale of the real estate, and an investment of the proceeds in productive property, as prayed for in the bill.

Upon these facts, we concur in his opinion that the plaintiff is entitled to a decree directing a sale of the real estate under the power contained in the will; and it is accordingly ordered that it be sold by the trustees, either by public auction or private sale, in such parcels and at such times, within one year from the entry of the decree, as shall appear to them best and advisable, having regard to the interests of the tenants for life, as well as of the remaindermen. If the parties do not agree upon the form of the decree, it must be settled before a single justice. Decree for the plaintiff.