320 Mass. 439 | Mass. | 1946
This is an appeal from decrees allowing two accounts of the trust created under the will of Thomas F. Welch. The appeal is that of Frank J. Long, Junior, a minor great grandson of the testator. The first account, covering the period beginning January 5, 1922, and ending January 20, 1938, is rendered by the trustees named in the testator’s will. The other account (also denominated a first account) is that rendered by two of the trustees named in the will and a trustee appointed to fill a vacancy caused by the subsequent death of one of those nominated by the testator. We shall refer to that account for clarity as the second account of the trust. It covers the period from January 20, 1938, to December 31, 1941. The case was heard by the judge upon the accounts and a statement of agreed facts, in effect a case stated.
The material facts are these: The testator died on November 25, 1920. He was survived by his wife, Margaret, three daughters, Katherine A. Long, Mary W. Nelligan and Ellen L. Welch, now Ellen W. Godvin, and two grandchildren, the son Frank and the daughter Elinor óf the testator’s daughter Katherine. His will was allowed on December 16, 1920. His daughter Katherine A. Long died, on April 17, 1937. She was survived by the daughter Elinor, now Elinor L. Graham (one of the present trustees), and a grandson Frank J. Long, Junior, the son of her son Frank who predeceased her. Her grandson Frank is the appellant. By his will the testator devised and bequeathed all his residuary estate to his three daughters in trust, to pay one third of the income to his wife, Margaret, specific sums in monthly payments to two of his sisters, the “entire gross income” from the “Stone House” to Sabina E. McLaughlin during her life, all expenses of maintaining the same to be paid out of the other income of the trust estate, and the remaining income one third to each of his daughters Katherine, Mary and Ellen during their respective lives. The testator further provided in article 2 as follows: “(F) Upon the death of
1. We now consider the first contention, postponing a recital of the provisions of the will of the testator and the other material facts bearing on the appellant’s second contention until we dispose of his first contention.
We are of opinion that the appellant is not entitled to share in the income of the trust estate formerly payable to his grandmother, the testator’s daughter Katherine. By article 2 (H) of the testator’s will he provided that, upon the death of Katherine, the share of the net income therein bequeathed was to be paid by the trustees for the “education, maintenance and support of her children, then living, until the termination of this trust.” Considered together with the terms of the trust concerning the payment of income to the other daughters of the testator and of the will read as a whole in the light of the circumstances known to the testator when he executed the will (Ware v. Minot, 202 Mass. 512, 516), we are of opinion that the testator did not intend that a grandchild of Katherine should receive any of the income that was payable to her in her lifetime, but rather intended that only children of Katherine living at her death should enjoy that share of the income until the termination of the trust. At the time of the execution of the will (November 15,1920) Katherine had two children, Frank (the father of the appellant) and Elinor. It is a fair inference from the agreed facts that that was known to the testator when he executed the will. And since the appellant is a minor and the will was executed in 1920, it is evident that he was not then in being. It is also a proper inference that when the will was executed the testator’s daughter Ellen was unmarried.
There was no error in the action of the judge in allowing the items of the accounts showing payments of the income from the trust estate to others to the exclusion of the appellant.
2. We proceed to a consideration of the appellant’s contention that it was the duty of the trustees to provide “for amortization of depletion of the wasting assets of the trust.”
It is settled that an unauthorized investment in wasting assets made by a trustee will not be sustained. The “rule is the same in regard to property which comes to the trustees from the testator, not specifically bequeathed, as it is in regard to making new investments,” Lannin v. Buckley, 256 Mass. 78, 84; and in such cgse, in the absence of express authorization under the terms of the trust to retain such investments, it is the duty of the trustee to convert such investments within a reasonable time. Mclnnes v. Whitman, 313 Mass. 19, 28-29, and cases cited. In the instant case, however, there was express direction by the testator that the investments in question should be retained so long as they showed a reasonable amount of profit thereon. No contention is made by the appellant that, through the periods covered by the accounts before us, those investments have not shown a reasonable profit. A comparison of their inventory value with the receipts therefrom discloses that during the period covered by the accounts the investments have shown a reasonable profit. Properly no contention is made that the accountants were under a duty to convert the investments under discussion. Manifestly
Decrees affirmed.
In the appellant’s brief it is stated that the testator knew that his daughter Mary, “though married, had no children.”