*1 v. BANK OF COMMERCE 244 NATIONAL Statement o£ Case. et al. vs. M. National Bank Commerce Francis Smith et als. testamentary purpose giving, through trust, A testator a created trust for the corporations credit to his firm to business and certain he was a which stockholder. sell, pay power mortgage, pledge, debts, The trustees had full to and to the testator’s firm, them; paper corpora- or to to to secure or extend indorse the or of the tions, corporations, and to use the trust estate to retire old debts the firm or of the years, or to ten create new ones. The trust was last at end of which time the property discharged according was to be distributed of the trust to the and devises ” bequests of the will. Held, years charge that the ten limited time within which the trustees could estate. Held, further, implied power expiration had an trustees to sell after the years. ten Held, further, property, that sales of the trust made the trustees after the years, of the ten were valid. trust, those judg- Of who became creditors this under some enforced their claims against capacities, ments the trustees in their individual others did not. Held, judgments that as the trust estates the creditors who took had reason judgments prior superior rights such judg- nor over creditors who had not taken ments. “-subject bequests charges payments The trust was created the devises and for made,” among annuity hereinbefore which was to the testator’s widow. Held, annuity ; that the widow’s was a first lien the trust estate that the trust must during life, annuity way ; continue widow’s unless her could in some be terminated pay annuity, charges, had expenses that the trustees to sell to these and the estates; should, care of the however, pro- incident that the trustees retain unproductive. off ductive sell realty, “subject Trustees sold which had been devised to them intrust to the devises ” bequests charges payments previously provided will, ap- for in the proceeds plied charges. reduction Held, application purchase-money properly was made. Creditors who testamentary have assented ato trust cannot then dis- affirming purchasers bought prior who from the trustees to such dis- affirming. power given particular

When sell the trust not for a or definite purpose, purposes generally, purchaser but of the trust from them is not application purchase-money paid. see bound to of his equity originally to a bill in Amendments which abandon the ease bill, made one, permissible, especially substitute a are proposed new when not until after the originally case made has been heard. Equity to establish a lien and for an account. On Bill bill, demurrer on the subsequently sufficiency bill, Then heard on answers, and plea. proof. D. Providence,

Amos died 21, January A. testament, last will and leaving was Feb- duly proved, *2 BANK OF COMMERCE of Case. Statement Providence County. Court of the 20, A. d. before Probate ruary —: Providence, is as follows and Amen. Name oe God. Providence, in of Providence I, Smith, Amos County and merchant, of sound dis- Island, of Rhode being and State mindful of the uncertainty and mind and yet memory, posing last will and life, make, ordain, and declare my human do testament. to be

I funeral paid, except direct debts and expenses my just created. as in the trusts herein hereinafter provided wife, A. devise, I Amey and to beloved my give, bequeath the south side*of and on lot land on Street my Hope fronting hundred and Street, one back on Street 'George George running hundred and feet, about one and on Street twenty-five Hope I feet, her, forever. also thirteen to her heirs and give assigns, furniture, and other her all absolutely statuary, my paintings, art, and to me of a household works all the articles belonging nature, on corner of whether contained in house my George streets, Providence, in in house on óf Hope my my Portsmouth; in also, farm silverware wherever may my stored, my square piano my pianoforte (the grand belonging ; harnesses, also, horses, all daughter Amie) my carriages, sleighs, be; also, therewith, and articles connected wherever the same may dollars in I beloved wife the sum of thousand give my thirty in cash her own and I also here to wish right, acknowledge my beloved wife third of owns her own one the Field’s Point right Farm; also, certain in the Bank of shares her name standing in Providence, Commerce also shares the Providence Gas Com- ; books, also, her, due on pany balance from me appears my Connecticut; and, and a landed estate in the town of Simsbury, certain, make this more and her title thereto the acknowledgment I that I title, devise and and interest all hereby bequeath my right, same, her, same, have in her may and all of the each heirs and forever and assigns, absolutely.

I devise, also use for beloved wife the give, my bequeath her Providence, lifetime bounded homestead estate my thereon, streets, Cooke George, Hope, improvements 246 NATIONAL OF COMMERCE v. SMITH. Statement Case. also, use to her her lifetime residenee in during Ports- my mouth, with the with as much garden, grounds, buildings, more land, house, as will make including gate gate forty acres more, acres, said wife select said and to forty draw the my line between said tract thereof and the remainder boundary I estate, as she fit. And further see rest my direct, with, *3 insurance, and hereby repairs, and taxes said estate to wife for her my lifetime, shall upon given be estate, out the rest and paid shall be to my chargeable her estate. separate

I also and to beloved wife give bequeath my the sum of six thousand dollars to to be her at such annually, times and in paid su5h sums as desired her so be as she shall may live. The long above devises and to beloved towife be in lieu of bequests my her estate, dower or other and to received be her rights my this condition. Amie,

And I further to beloved sum my give daughter, dollars, two thousand to be to her life, her paid annually during to same estate herein upon my devised and be- chargeable annuities of trust. six thousand Said and of queathed two first thousand dollars be the said trust charge upon estate prior to the trusts thereof.

Whereas, I am firm a member of the of A. D. & Smith Com- I and am also a stockholder pany, following manufacturing to wit: Franklin companies, Gro- Manufacturing Company, Mill, ton and Providence Steam and Manufacturing Company, am indorser said as member of the firm of A. D. companies & otherwise, Smith and and liable for the debts of said Company and whereas be desired that said companies, shall may companies have the benefit of a continuation and indorsement liability, I devise, and not herein hereby give, bequeath my property of, otherwise and all to the devises disposed my subject made, and and hereinbefore bequests charges payments Francis M. Charles Morris their and as- Smith and heirs them, as and to the tenants To survivor forever. signs, joint trust; hold the same take have possession of all and to have same, said trust absolute same, and his discre- their uncontrolled manage v. BANK OF COMMENCE of Case. Statement concerned; of all interests or he deem for the best tion as they may or same time, time, any part from time to convert at or conversion to after such into either before or thereof money, for the or thereof, to or same, or or use the part apply debts, liabilities, extension or to or retiring securing them, either of out- or or or or any obligations, primary secondary, me, either as partner at the time decease standing my indorser, or guarantor, or or as or surety, corporator, individually, otherwise contracted or or however whether as individually, partner be incurred incurred, or or or which have been may the business and assisting purpose carrying aiding Mill Steam and the Providence Grroton Company Manufacturing them, or of either the Franklin Company, Manufacturing be, in future intended me such liabilities and being being, for the full trust estate this trust under chargeable them, either amount of the of said companies, obligations *4 thereof, the stock- as between desired and creditors by subject, debts, liabilities, contribution, therein, holders to and also or either kind, and of or or any secondary, obligations any primary or incurred them, of from time to time contracted may or said trustees or the time while trustee for being, acting, pur- act, to under these trusts. porting

I also authorize trustees or trustee and said empower my into renew, make, indorse, time or enter being guarantee, note, bill, bond, contract or or any negotiable obligation, paper, nature, indorser, of or whether as surety, any principal, guarantor, for the or either benefit or of said accommodation corporations, & them, or said or the firm A. D. Smith Company, estate, or accom- trust and all such and undertakings engagements modation or or trustee made entered into said trustees if made time trust as shall be as said estate being binding upon lifetime, or holder entered into me in and any directly my law or thereof at suit or may by any proceeding appropriate or from thereof equity enforce same or payment against estate, said suit or and it shall be no any objection creditors, or other person except other proceeding any or made par- or trustee time are being, joined thereto; lawful ties it shall be and it declared that is further OF COMMERCE v. Statement of Case. time, or said trustees or trustee for the time at being, any time, time to to make such or otherwise building improvements by as he the real estate or deem and to they may proper, keep said trust and buildings improvements good repair fire, insured loss to receive collect all rents and income of said trust estate and for said trastees or trus- time, tee for or from at time to time to time make being any as in common estate held them tenants with partition any other or to sell auction at or contract any person, public by private otherwise, in fee or or to or free of all simple mortgage pledge estate, trusts or of said trust real or parts any part personal, with title, sale, or without covenants or or warranty of other covenants or and to enter into contracts in agreements, estate, same, the said trust and to or rescind the respect vary resell, in and accountable for without buy being any resulting loss, fit, as or he all see received under the they may moneys trusts hereof after taxes other paying expenses attending thereof, said trust estate and the and the execution of care created, trusts of these hereby apply any purposes trusts, or to as or reinvest said trustees trustee for the time being deem with from time to to alter or time expedient, vary thereof, the investments or reinvestments or of the said trust any best, as he think and no or may purchaser, mortgagee, with or or other said trustees trustee for pledgee, person dealing the time shall be under being, obligation inquire sale, necessity, regularity, propriety mortgage, pledge, whatever, act other or transaction made or done or entered into by *5 said trustees or trustee for time or to see being, applica- tion of or other realized or moneys any purchase-money arising therefrom, in or wise affected notice that the same any are by done, or is not or made or for the moneys applied purposes of said trust.

And I authorize further either said trustees and my with written consent other of said trustees first then to be obtained to or indorse make or other negotiable any paper paper are said trustees authorized to or make hereby indorse. IAnd and that further declare the within trust appoint may from continue for the time period years decease my COMMENCE BANK OF Statement of Case. Providenee death, case of the in the resignation, and that and longer, trustees, of said removal, of either or disqualification and be exercised shall may remaining in said vested trust said be filled that trustee, vacancy and and trustee the executrix of the remaining made by appointment court. or my trust at the of said the termination

And upon decease, or termi- other of ten my aforesaid term liabilities after the my liability nation thereof discharge than as herein other corporator provided my of all and the consent and of said corporations, agreement debts forth, hereinafter set their the cestui trusts representatives que and trust fund and estate shall be distributed I direct divided, and that said trustees shall the same convey discharged as follows and to the devises and said trust bequests according made; children, is, devise, I herein that my give, bequeath C., M., Smith, Jr., J., Hannah Francis and Amos share Henry alike, share all of the Franklin interest my property Manufacturing Company. M.,

I devise, children, also Charles Amie give, Bequeath my M., B., alike, share and share interest George my prop- in the the interest and Groton fee erty Manufacturing Company, these to' be and forever to the children properties absolutely given But I further direct that an at aforesaid respectively. appraisal the time of distribution be made of each of said and if properties, it be ascertained said children appraisal any my would have received more value under clause appraised others, will than the difference between such then my be made children the smaller value values to up receiving I otherwise out of estate. And my hereby give bequeath such defi- sufficient sum out of estate to make money my up said distribution and to be made at the termina- ciency, appraisal tion of said trust.

And I the remainder of said' further direct and appoint divided and and estate shall be conveyed by said for, trustees, trust as herein at termination of said provided said children fee among my discharged absolutely *6 trust, share and share alike.

250 OK COMMERCE v. SMITH. Argument Respondents. Providence In case of the decease of either of said children without my leav- a last will and testament or instrument the nature of a last ing testament, children, and will and also then such leaving parent’s share shall to children. All the estate devised and be- go children to to remain my this queathed charges subject will in favor of wife and my my my Amie. daughter I further beloved wife appoint sole executrix of my this my my testament, will and and last and direct that she shall not request be file an required or to as inventory my bonds give executrix or administratrix thereof. whereof, I have testimony hereunto and set hand seal the my December,

ninth in the of our Lord day one thousand year eight and hundred seventy-six. Amos [l. s.] sealed,

Signed, published, and declared the said Amos D. testament, his last Smith of us presence who at his his request each presence presence of other hereto subscribe ourselves as witnesses.

C. S. Bradley, C. Bradley, John H. Berry. creditors in a complainants, series judgment suits of one, Banh v. Nat. Roger Williams Groton Go. Manufac. R. I. filed this bill in example, equity subject their claims. It appeared answers of the trustees that certain had been sold realty Providence to one conveyed city more than Hodges after the testator, death of the whereupon complain- bill, ants amended their made the city Providence Hodges parties respondent, the land sold to them prayed might claims, and subjected complainants’ be sold under the court, decree or that said of Providence and . . . Hodges account for and might over these pay . . . the complainants thereof.” purchase-moneys

To the bill so amended demurred. Solicitor, Nicholas Van & M. Slyck, City Cyrus Van Slyck, Solicitor, Assistant City the demurrer. support Was the sale of after of ten years period trustee ? beyond *7 251 v. SMITH. BANK OF COMMERCE NATIONAL Respondents. Argument for County. Providence to obtain exten- to the limit power only applies The year 1. not to credits, and power and to new old credits procure sion funds to discharge for the securing purpose to sell mortgage fastened upon property. trusts already on the was the carrying trustees to the confided real trust credits. means securing of the testator by business enterprises continue may trust is, The language ” is said as nothing and no of ten longer; period power. have survived held to them, are trusts,

If any part v.' Pearce survive. limitation, to that trust incidental powers Gardner, Hare, 10 287. were so conceivable, that, carefully

It is not where the powers a trust should elaborated, testator that it was the intention limitation, and the be created which survive the period might conceived trustee the testator be of those which deprived powers his essential for the consummation of purpose creating proper all its incidents. survived, If the trust. with it survived power moreover, distributees It would be residuary inequitable, to the settled should be to have estate deprived right to settle the best because the trustees advantage, neglected of that prior period. that, effect, case, in this are contending complainants, clause, clause, claim this under this trust they

although portion themselves, which should be now deem disadvantageous out, testator ever than the a better wiped they put position intended, and at the because the of innocent expense parties, conferred them exercise the neglected powers within the time directed. debts,

2. If there was a no although be to sell would express implied. were given, yet power 272; G., v. & v. Lowater, Robinson De M. G. 5 Eidsforth 905; Armstead, 833; Pinch, H. L. 2 & 5 v. J. Kay Golyer Colton, Greetham 34 Beav. 615.

If this is a sale so, this court to decree has power of 7. R. I. Pub. property. cap. Stat. § or sur- There a continuance is another ground upon vival of the power predicated. OF COMMERCE v. Argument Respondents. irrevocable,

A with an interest although by coupled *8 donor declared to 2 on Real be revocable. Washburn Property, 4th ed. 651-668. shows that the trustees The bill the accepted trust, and made and indorsed and other obli- negotiable paper of that became trust. gations pursuance thereby person- They liable on these Bank ally National obligations, Williams jRoger v. Groton are then en- 16 R. I. 504. They Company, Manvf. titled under certain from the trust circumstances to be reimbursed e., if enforced, that an in- should i. have liability terest in the trust property.

Was the as a to the bound to see city purchaser application the ? purchase-money If

a. the and its the of limita- incidents survived period tion, trust, the terms of no such the there was express obligation.

b. If it should be held that the land immediately previous the or trust for was a conveyance charge subject debts, payment then there was no such obligation.

Where there is devise debts charge payment ,a is not bound to look to generally, application purchaser Juris. Lewin purchase-money. Story Equity §§1130,1181; on Trusts, *456, ; note; Trusts, 4th on ed. 795 Forbes Perry § 721; v. Peacock, 716, 152, 528, 11 Sim. 12 1 Sim. Stall Phillips, v. Cincinnati, 169; Proctor, 16 1 Ohio St. Goodrich Gray, 567, 570; Gardner, Potter v. 12 Wheat.

The reason for the if rule seems to be the not difficulty, impos- that the who sibility, should be able to ascertain would purchaser be entitled to said, receive it would As has been ne- money. cessitate an examination entire business of the knowledge the testator.

The reason of the in the case at rule to us bar. appeals strongly In this entirely is to country require- tendency abrogate ment that a purchaser should see to the purchase- application The on money. purchaser rule English duty imposing where the is for “is not favored debts specified American courts, where cannot the doctrine although they apply be avoided.” Trusts, and notes. 4th ed. Perry § The bill does not that the trustees did apply pur- allege trust. accordance chase-money with the terms OF COMMENCE v. SMITH. Argument Complainants. The if must be complainants’ founded equity, any, against misappropriation only averment purchase-money. this is reference to that the trustees have applied proceeds same, but what have no defi- way your complainants information, nite but the same or thereof has not any part been of said applied the debts complainants.” The bill shows trust estate in favor charges of the testator’s widow and of his Amie are daughter prior trusts favor creditors. It should show further, the com- defendant, maintain this suit would plainants to these not been of an applied charges equity proceeds supe- *9 of the rior to that plaintiffs. T. James & Thomas

John C. Blodgett, Ely, Joseph Tillinghast Greene, for contra. complainants C. of

The of Amos D. a Smith discloses back- anatomy bone, all his a certain give shares his purpose First, attached to this two children. But are he appendages: for desires to his wife unmarried Amie. provide daughter etc., for annuities, These he the same provides charging estate, but of his corpus furnishing machinery by out, should be worked of a outside court of But charges equity. favored, more not more were the claims of cred- though pressing, itors. he These determines to a trust with provide the continuance his for a business ten period years the time of his decease and no Now to these cred- longer. keep itors, and who creditors, others after his decease become might claims, contented to forbear from their he makes such pressing ” “ claims said estate trust so created. And chargeable again, “ as-to incurred, liabilities thereafter he shall the same be as says trust said estate as made into entered binding directly lifetime,” me my latter clause to evidently intending by a like that of give the statute. Pub. N. I. liability 139, Stat. cap. 13, 14. §§ ” “ That the word must be assumed to create direct chargeable charge upon trust evident from the con- corpus! text of If the will. there could be reasonable question upon it, see kind case of this which has been found only reported ” “ where the Walker, word is used. Jones v. 103 chargeable U. S. 444-446. BANK OF COMMERCE Argument for Complainants.

Providence County. from the for the of ten trust was to last period years This “ IAnd further testator, See will: and no longer. decease continue declare that the within appoint decease, and no from the time my longer.” period 1877, the ten 21, years’ Amos Smith deceased January with the trust ended for the duration said term above specified a con- The executed A. D. 20th January, day tlie 1888 (after on March to the city veyance of the Field’s Point of said ten years), portion expiration §45,748.10, no for which the trustees Farm, and paid sum said trustees pay- of which has been part applied due ment of debts complainants. had no that the trustees maintain complainants viz., said ten years,

make after conveyance land should be 20, 1887, and that accordingly after January in favor com- to a to be still declared either subject to the com- declared to account shall be plainants, thereof. purchase plainants price London, Board Trustees and School In re Cotton’s See 624, 627, Mr. Justice Ch. Div. where Fry, delivering L. R. 19 — court, : the law as follows stated opinion *10 is a there settle- it is well ascertained that when Accordingly deed, or and the settlement of real either will ment in fee simple, the to a entitled carries land person ultimately without limitation words and are couched there powers general intended to be exer- time, are as to nevertheless obviously limitations, of the intermediate the cised subsistence only during then, are at vested, the is the the moment fee powers that it was of the settlement shoxdd end, because the intention limitations, axid therefore in the intermediate subsist only during in the ulti- the persons ease of the estate that vesting absolutely to the true construc- is an indication that entitled mately according with settlement, the intention the settlor regard tion of the also, Trust, on See, has to an end.” Lewin the come premises * 605, *606. , . cases of kind This seems be so self-evident point it. seems to have been raised directly question for ten It has The then had an estate years. trustees only OF COMMERCE v. SMITH. Argument Complainants. of sale and the ended, all other powers. and with as incidental on the business carrying only given were It is to refer to them to only ten years. necessary within the the point. prove where the testator has understand cases

In order fully cases, be carried on are (which way, his business directed it must borne in mind that the most of numerous), at all not of a and conse- direct do not involve question charge, them be worked out of the creditor must through equity quently trustee reimbursement. of the executor Though equity Garland, 10 Ves. Jun. 109: Lord Eldon said Ex “They” parte lien like a estate em- creditors) very (the something n in the trade.” barked Yet the cases rest creditor subsequent equity executor, eases which, of the trustee as to see late In re 548-552; Pobinson, L. R. Johnson, v. 15 Ch. Div. Shearman 536-540; Gorton, Gorton, L. 'R. 40 Div. re Dowse v. Ch. Mason (cid:127) 24 North Eastern Pomeroy, Reporter, where, is it a But this is a case like those. Nor case as to rule ordinary seeing application purchase-money a It is a case of direct At end of the ten applicable charge. was incumbered as a property directly by mortgage. and the itself then ascer- What was incumbered incumbrance were tained, and the same fixed. To allow interference definitely after that time is to a ineumbrance put mortgage defendants, trustees, its lien. All peril losing parties, insolvent, are admitted to have an additional been corporations, hand reason such matters should be settled why impartial considered, Had it the creditors court not been so equity. been con- would never have tolerated extension. This has It thus construction of was parties. temporary sold to the when the was question prior equity *11 Providence. notice

The with the trustees was charged from city buying America, I. 16 R. I. T10. And the will. R. v. Peek Bank of interest, took subject such notice construction having only v. such creditors. re Pillgrem prior Margan, equities Div. L. R. 18 Ch. 93. Pillgrem,

256 NATIONAL OF COMMERCE v. SMITH. Comity. Opinion Court. “ When a makes the o£ the debts a on the charge land, the will be bound to see that the purchaser purchase-money so the land him is applied, purchased by sold may at the in- stance of the creditors.” v. Brown Adm’r, Logan’s 7 South 398. Western Reporter,

This not so common case of question, though direct debts, is a matter decided as to often and the legacies, is principle the same. 281, See 15 N. H. ; Pickering Pickering, 528; Sheldon v. 16 Pick. Pent, Newman v. Purple, 1 Meriv. 240; Shaclcleton, 2 & Shackleton v. Sim. Stu.

This demurrer should not be sustained in the face of such culpable on as it is neglect part demurrer confessed. 14, 1891. The February is, question whether Per Curiam. the trustees under the will of the late Amos D. Smith had power, death, than ten after his more to sell and years convey portion of trust, the trust The property. declared purpose testator, was to used to have the trust credit property give member, aid to a of which he was a pecuniary partnership and to three in which he was a manufacturing corporations stockholder, in order that should suffer the loss of his indorsement guaranty personal liability. Accordingly, property secure, was trust to be used to or extend put pay, debts and decease, liabilities him at his and as a outstanding against basis of credit for the creation of new debts and liabilities trustees them; to take the unlimited to sell and place convey, of the trust mortgage pledge, property discharged con- being them, ferred and also a of incidental variety its management improvement. clause in language involved, declared is exceedingly complicated, and in understand, some difficult to respects from lack of clear- ness and of declaration. It is completeness provided that continue for the of ten period years time of decease, the testator’s and no my, The contention is, that longer.” Providence, sale been made after having was invalid. There are two considerations expired, is, make this view. strongly One their liabilities and go new authority renewing incurring ones on the and in credit the full exercise *12 v. SMITH. BANK OF COMMERCE 257 of the Court. Opinion until expiration them that purpose, the powers given of that at period the ten years; instantly determine, both their own as trustees all their trust and powers be of the creditors will very ineffectually and the interests interests But, that this was intended. to believe It not easy protected. trust, that, it is termination provided again, divided, and that the trustees shall be distributed trust, as the same is shall the same discharged convey But how can the trustees in the will. devised and bequeathed trust,” is, that liabilities it of said convey “discharged trust, unless the trustees have it under the attaching them as continue for the of such of unpaid raise money to us the more have It seems after ten years expired. is, were allowed construction reasonable created; for which it of the trust for the was continuance purposes credit and aid the partnership namely, give pecuniary neces- for that but that longer purpose, corporations, with intendment the trust must continue the powers necessary sary of its affairs winding up discharging prop- ” “ said trust so that conveyed discharged erty, to have it so entitled under the will conveyed devisees legatees ” words, the word them. In other we think that used a con- for its termination was signify provision aforesaid, to the concerns trivance aid and credit giving that sense the trust and the trustees were to terminate. are however,

We free to that in this construction we giving say, so with much hesitate to commit do so doubt that we ourselves to trial; it as final this at initial that there are stage seeing heard, who been and that parties subsequent yet proceed- our will, We ings may bring light may modify opinion. therefore, course to the case the pursued regard pursue somewhat now in this similar matter Lynch pending Briggs, court, that is to demurrer without we overrule the say, preju- but final dice at the same time reserve our conclusion city, after until further hearing.

Demurrer overruled without prejudice. Providence, its de- one after respondents, VOL. XVII. — B. I.

258 NATIONAL BANK OF COMMERCE v. SMITH. County. Providence Opinion of the Court. overruled, murrer had been filed a which the plea, complainants set down for argument.

November C. This J. cause is before us Matteson, of the the of the of question plea the of sufficiency Provi- city dence to the amended bill. The sets in bar so plea up to much of the bill as for and relief from prays discovery the of Provi- dence, that at the time the trustees and sold to it the conveyed real bill, estate referred to the amended and that it there- paid $45,048.10 for of trustees, the sum there was due them to A. deceased, the widow of the a much Amey greater sum on of account the for will, her in his annuity provided that the sum thus due to her was the terms of owing by the will a and lien the estate so sold and charge upon conveyed, prior to, and of a than, of nature the liens the higher complainants, them, of and that sum so the the to trustees the of paid for, to, Providence was needed and was the wholly applied payment reduction, such lien and for part, such charge annuity. We think the is sufficient. plea to its complainants because, sufficiency claim, object they for

the the lieu of dower annuity the widow provision gives no lien their as creditors. If rights these superior complainants had not the of the trusts created the accepted provisions testa- favor, tor in their widow, were the proceeding against legatees, will, the and trustees named in enforce the lien for statutory claims, the of their the notwithstanding provisions will, would their claim. there be force The cases which they nature; cite are of that such is not the nature the but present bill is bill. This framed the theory trust created upon will had the terminated at the ten limited years continuance, for in the will its trustees, that estate, to sell the trust had ceased including termination the trust. At a we former term held that though trust, so far as it related to the incurring obligations as to trustees so trust with the ten expired it limited, so continued the yet purpose enabling affairs, its wind had sell up they implied power convey purpose discharging for which was could liens and claims since charged; NATIONAL BANK COMMERCE v. SMITH. OK the Court. Opinion estate not otherwise of the trust convey portions required to the devisees and entitled under the will to purpose legatees trust,” as directed the will. portions, discharged the terms of the will the in favor of widow was annuity By made a lien the trust estate lien under superior arising trust, and the estate the trustees was conveyed expressly *14 “made to the devises subject bequests charges pay- ments,” made in the will. the previously Among charges pay- ments, to which the devise and of the trust estate was thus bequest is made the to the widow. The refer subject, annuity complainants to a clause in the will to effect that all the undertak- subsequent and accommodation made or entered ings, into engagements, the trustees shall be as the estate as made binding upon or entered into lifetime, in his the testator as evidence directly by that the testator intended to confer creditors superior rights to those of the widow. seen, It will be however, that such under- and accommodation takings, engagements, are made binding only estate, which, on the trust shown, is already to the subject prior It charge payment annuity. therefore, apparent, that under the provisions the will the. trustees had no alterna- tive but to the apply received them from purchase-money the of Providence from the real it, estate sold to to the payment the which was a annuity charge land liens prior trust, under the and if had no they alternative but to it, so apply it, and did so it was apply properly applied, purchaser, that it was bound to see to assuming application the pur- cannot be held chase-money, account, liable to nor the land be for its payment. charged, not

It does that appear had been taken steps complain- disaffirm ants to will, created to which they assented, had to the prior sale and of the land in conveyance ques- tion to the of Providence, on bill, March 1888. This even if it could be in that was not regarded filed until light, Novem- 25, 1889, ber more than months after sale and eighteen conveyance. to dis- Assuming complainants affirm the trust will, created in after to and assenting going under it the ten during continuance, limited for its think we would trustees, or estopped proceeding against pur- BANK OF COMMERCE v. SMITH. Opinion of the Court.

chasers of the trust moneys applied purposes speci- will, fied inof disposed accordance with the pro- will, visions of the to such disaffirmance. prior cannot stand They to such acts of the by, apparently assenting purchasers and then seek to dissenting, trustees or pur- chasers therefor. complainants on the it is object plea ground

double. doWe not think that it is to this It open sets objection. defence, one to wit, but up application purchase-money of the arrears of the It is true that it annuity. goes on to recite that the widow and the devisees and named legatees in the but it does not joined conveyance, set purport up this fact as a defence. Its is to show apparent purpose sale and were with the conveyance assent and of those approval in the fail to We see how the joining conveyance. statement fact any way Doubtless it would strengthens plea. *15 have been better if the statement had As, been pleading omitted. however, it does not constitute a defence and does not appear view, have been inserted with that we do not think its insertion renders double. plea t^he the the opinion Providence,

After respondent, consent withdrew its and filed an plea answer. The case then came on bill, on for answers filed the hearing different respond- ents, and proof. 20, In February our of Novem- opinion Per Curiam. 28, 1891, ante,

ber we held that the page to the testa- annuity tor’s widow was the a lien trust estate upon superior lien under trust in the favor creditors. We arising see no reason to our then as change opinion expressed. life;

That is to the widow annuity given her must, and it during therefore, life, continue her unless she during consents to its ear termination, lier is in unless it the court, the power upon bill for that to terminate the trust proper purpose, and the lien of the will, on the trust estate under the annuity the application of the of the the debts. property payment Assuming a bill could be maintained, the bill present prays relief widow, nor it against the does contain any allegations upon as her can we the claims of creditors give over the priority BANK OF COMMERCE «. of the Court. Providence County. Opinion As unless terminated one or the other the annuity, annuity. constitutes a mentioned, continue, must lien on of the ways trust cannot be wound its affairs the up Whether, the life of widow. technically, settled during im to the widow or not is have trustees pay annuity it, court, material, do not the application pay widow, the sale of so much of of the would be bound decree for its and what be needed the trust estate might payment, decree, will sanction if done court bound to would be trustees. insurance, taxes, also, required,

Money payment and other incident to the care and repairs, expenses manage- proper of the trust ment estate. The for these purposes money required sales, can be raised sales of the trust only making property. however, it is the of the the interests of trustees duty regard creditors as well annuitant, if, conceded, as of the as is debts are excess of the value of the trust largely property, it, exceed the income from expenses carrying property would prudent dictate retention of that management part which is sale, as soon as productive, practi- cable, of the unproductive portions. reason,

For this and also as it is that, alleged proper it will be found that the accounting, their hands which will be money applicable annuity trust, will, we account, expenses pending taking the sale of the fourteen shares of I. enjoin the stock the R. *16 Co., Trust Hospital the reserving trustees the to move for right a modification or dissolution of the the should exigen- injunction, * cies of the trust require.

The case does not show that either the of Providence or city Frederick S. were of the of Hodges the cognizant application pur- them chase-moneypaid for the real estate respectively purchased trustees, of the other than to the and other annuity under the will charges not, the trust if we do not think that are to be held if, liable for its even as application, the it has complainants been For if we allege, assume misapplied. in the will that provision shall be purchaser obliged see to the of application limited, is to as any be purchase-money 262 OF v. COMMERCE Opinion of the Court. insist, the to sales the trustees complainants the ten during years testator, next of after death the the trustees to sell is not limited to or definite particular but extends to the purpose, of such the trust cases a generally. is not purposes purchaser bound to see to the of application The purchase-money. rule is well 277, stated in of Bispham’s Principles follows: Equity, § that whenever a trust or is of a nature, definite or limited must himself see that purchaser purchase-money applied trust; but whenever trust is of a proper discharge nature, or uncertain he not see to it.” And need see general Clyde 445; v. Merriman, et al. Ohio St. Elliot 2 Atk. Simpson 78; 30; case & Barnardiston Ch. 1 White Lead Tudor Cas. Eq. *59, notes; on Trustees, Hill *342. the bill We think should dismissed as Providence and said against Hodges.

We do not think are entitled to complainants prior to other creditors of reason superior rights obtained lawat the trustees indi- having judgments against vidually.

A decree was entered the bill as dismissing Providence and The filed Hodges. complainants then a motion to amend the bill of This motion complaint. was opposed re- trustees. spondent 30, 1892. Per Curiam. The bill as

April framed originally that the trusts proceeded upon theory created the will of Amos D. Smith terminated at the ten after his decease, and for an account of the trust estate prayed hands trustees. court found that said having trusts did not at the end and that expire so as the years, trusts con- long tinued, Smith, A. the widow Amos D. Amey was entitled will, in the and that such annuity provided was annuity creditors, superior rights now seek complainants amend the bill as to so have their claims as creditors the estate of Amos decreed to Smith be a first lien estate and now he died seized and property remaining possessed, all the taken and held in lieu of he that which held at his death, dower, to the claim his of widow for subject only *17 claim she has addition to she what has received out of already estate; or in the alternative such shall that claims be decreed 263 «. SMITH. OF COMMERCE Court. of the Opinion now remaining lien of the estate first that be a portion estate,” trustees, called the testator the hands A. of said Amey or claim preference any right superior the court may as her claim Smith, events right at all second other among to be amended The bill prays, determine. proposed has re- said widow taken what account be that an may things, Smith, that she Amos of said from the estate ceived husband the decease of her dower, may at claims the value of such amounts due be taken of the ascertained, account may be deceased, and their creditors and the other the complainants sold, and be established, pro- may lien being costs, be rata ceeds, may applied after pro for an creditors, that a receiver be appointed the payment and for relief. general injunction manifest the effect of amendments will

It is proposed a new case from that which to make and different we have decided, heard and which remains to be done nothing already a decree to our to enter conformable decision. To but grant amend as motion to under the permissible settled proposed Amendments, rules equity practice. which is to purpose before court other parties bring or to controversy, elucidate, or the case bill, made strengthen, explain original fact or to issue some material put or indi- may directly made, the case considerable, affect so however rectly be freely at but allowed any stage where the effect of the proceeding, is to amendment abandon the case made and to originally substi- one, a new and different tute when it is not especially asked case until after the has been heard or even set already downfor a different rule the discretion of the court. hearing, governs it will a case be found more consonant generally with justice suit, leave the complainant new if so advised. bring Pratt ; Bacon, 125, 128 10 Pick. v. Jones, v. Lambert 2 & Heath, Patton 163; 144, ; v. 14 Pet. 156, 160 Va. Walden Bodley, v. Snead Mc 421; 407, al. 12 How. et U. Coull S. v. Barrow, Shields et al. 130; Coulter, How. 17 U. 14 38, 44, ; S. Fenno v. Ark. 46 Carey Mott, 539; 430; v. 11 Ga. 14 N. J. Codington Eq. *425, Daniell Chanc. Plead. & Prac. note *440. motion to amend is denied dismissed. *18 OF COMMERCE v. SMITH. Opinion of the Court. “

Decree entered This cause April came on to he heard above at the named term said court and was further of counsel, and it is on by argued consideration thereupon thereof ordered, and decreed: adjudged, “ That the are not entitled to complainants any prior supeñor to other creditors the trust estates described in rights the plead- of reason their by obtained ings, as having described in judgments the answer respondent said against Francis M. Smith and Charles Morris Smith their individual capacities. “ That the complainants’ petition order injunctive for trustees, M. Francis Smith and respondent Charles Moms Smith, 1, 1892, January ashing they restrained filed sales making trust estates held them part by under the will D. Amos S?nith is denied and dismissed. “ widow, That the Smith, A. annuity Amey by given will, said Amos D. Smith his and the by expenditures needful insurance, and taxes on the estates to the said repairs, given Amey will, A. her by Smith said Amos D. Smith his are by life on all the trust estates lien held the said Francis M. first Smith, Morris as Smith and Charles trustees under said will of Amos Smith. trustees, Francis M. That the said Smith and Charles Mor- make, ns authoñty at public private sale, estates held them sales pay annuity, insurance, and taxes real and the on the repairs, given the said Amos D. Smith his to the said A. Smith Amey insurance, taxes, her and to and other ex- life, pay repairs, incident to the care and said trust management penses proper estate, and are make sales as soon directed to further the trust estate their hands as practicable portions are no income. unproducti/oe bring ‘‘ That the motion to amend the bill complaint filed 23, 1892, March is denied and dismissed.” complainants Greene, Thomas John C. James C. &Ely Tillinghast, Joseph T. for complainants. Blodgett, Green,

Arnold for trustees. respondent