241 Mass. 112 | Mass. | 1922
This is a bill in equity brought by the trustees for instructions concerning the final distribution of the estate under the will of Whiting Street. The purpose and intention of the testator . will be considered under the discussion of the questions propounded in the record.
It appears that the will disposed of all the property of the testator which he possessed at his death, and there being a residuary clause no presumption of intestacy arises. Batchelder, petitioner, 147 Mass. 465, 468. Boston Safe Deposit & Trust Co. v. Coffin, 152 Mass. 95, 99. Jones v. Gane, 205 Mass. 37, 43. Williams v. Punchardt, 217 Mass. 237. The trustees invested $112,500 which they treated and kept separate from the trust fund held by them under the sixth item. The principal however is stated to have so increased in value as to be greatly in excess of that amount, and the question is whether the increment is to be distributed as capital, or there is a resulting trust in favor of the heirs at law of the testator living at his death. If the excess or increment consisted of "undistributed interest” the terms of the will would be exactly applicable. The testator created and endowed a charity.
The testator having also in the seventh' item authorized the trustees to appropriate and dispose of the sum of “Fifteen Hundred . . . Dollars” at their discretion, the question whether they can so appropriate and dispose of “said sum of fifteen hundred, its increment and income ... as donees of the power ...” is answered in the affirmative.
The cemetery described in the fifth item “for the adornment and improvement of” which the testator directed the net annual income of “Five Hundred . . . Dollars” to be applied has long since been abandoned, and his body removed to another cemetery where a suitable memorial has been erected. The testator intended that the public burial place where his body was buried should be maintained in good order and condition and the bequest therefore is charitable. Bates v. Bates, 134 Mass. 110. Moore v. Natick, 176 Mass. 510, 513. The designation of the public cemetery named by him being incidental and not primary, his purpose can be accomplished by application of the income for the “adornment and improvement” of the public cemetery where his remains have been reinterred. A scheme for such administration is to be devised by the court of probate. G. L. c. 215, § 6. Richardson v. Mullery, 200 Mass. 247.
By the sixth item Harriet Adaline Street, a niece of the testator, who is given a two ninths share during her life in the net income of the residuary trust fund there established, having pre-deceased Joseph E. Houston whom apparently she married after the tes
“Is it the duty of the Trustees to pay the income, which had accrued during the life of said Harriet Adaline (Street) Houston of her said two-ninths of the residue and which was not paid to her during her life, to her legal representative as a part of her estate, or to her heirs at law?” The trustees are instructed to make payment to her heirs at law.
The seventh prayer is, “for such other and further directions and relief, as may be found necessary to enable them to make a proper distribution of all trust funds in their hands, as trustees aforesaid, and for their full protection in making such distribution.” The trustees having asked specifically for such directions,
It having been determined that “the municipalities and other beneficiaries named in” the fifth and seventh items are “entitled to receive the legacies conditionally given to them,” the necessary arithmetical computations called for under the eighth question can be made by the trustees, and the form and details of the decree in accordance with this opinion settled in the court of probate, with costs taxed on the fund as between solicitor and client.
Ordered accordingly.