Plympton v. Boston Dispensary
106 Mass. 544
Mass.
1871
Check Treatment
Gray, J.

It is admitted that the assessment for betterment was duly laid by the city upon the estate in Avon Place, and must be paid. The question argued is, how the plaintiff shall charge or apportion the amount upon the interests of the Boston *547Dispensary and of Mrs. Dearborn in the trust fund in his hands. This question may be most conveniently treated by considering first the general rules of law in like cases, and then how far the application of those rules is affected by the provisions of the will.

As between tenant for life and remainderman, ordinary taxes are to be paid by the tenant for life. Fountaine v. Pellet, 1 Ves. Jr. 337. Varney v. Stevens, 22 Maine, 331. Cairns v. Chabert, 3 Edw. Ch. 312. But when the whole estate is subject to, and benefited by the discharge of, an incumbrance not created by either, equity will apportion it ratably between their different interests. In the case of a mortgage, for instance, the tenant for life is bound to keep down the interest, but not to pay the principal ; and upon a discharge of the mortgage by the remainder-man, a strict adherence to the rule would require the tenant for life to pay interest on the amount during his life ; although, for the convenience of all parties, the value of such an annuity is usually estimated, and paid at once in gross. 4 Kent Com. (6th ed.) 74, 75. Swaine v. Perine, 5 Johns. Ch. 482. Van Vronker v. Eastman, 7 Met. 157. An assessment for betterment, under our statutes, upon the laying out of a highway, is a tax; but it is not an ordinary tax; it is an extraordinary assessment laid on the premises, in view of the permanently increased value of the estate by reason of the public improvement in the vicinity. Harvard College v. Aldermen of Boston, 104 Mass. 470. Codman v. Johnson, Ib. 491. It must therefore be treated, as between tenant for life and remainderman, as an incumbrance on the whole estate, to which the tenant for life must contribute to the extent of interest during his life on the amount paid, and at his death the remainderman bear the charge of the principal. The burden of an assessment for betterment is thus borne by them in the same proportions in which they would have received the benefit of entire damages assessed against the city, in case the estate had been injured, instead of being benefited by the improvement. Gen. Sts. c. 43, § 17. Gibson v. Cooke, 1 Met. 75.

The will of this testator, contains no provision as to the payment of taxes, but leaves that to be settled by the general rules of law. The clause as to repairs relates only to expenses volun*548tarily incurred by the trustees. Mrs. Dearborn is not obliged tc occupy the estate on Avon Place, but may do so at her discre tian. If she does, the rent, at the moderate rate fixed by the will, is to be computed as part of her share of the income of the trust property, of which that estate forms part. If she does not, the income of this estate, like that of the rest of the trust fund, is to be divided between her and the Boston Dispensary, in the proportion of nine fifteenths to her and six fifteenths to that institution. In the first case, so long as she occupies the house on Avon Place, she is tenant for life; Co. Lit. 42 a; and as such must pay the ordinary taxes on the house. In the second case, such taxes would be paid proportionably by her and by the other party entitled to share in the income. The same rule of apportionment must be applied to the payment of interest on the amount paid out of the principal of the trust fund to discharge the assessment for the betterment of the estate in question. So long as she may see fit to occupy it as a dwelling, and thus enjoy the exclusive use of the premises, she must pay the interest. If she should at any time elect to abandon the occupation, the bur-, den of this charge will rest upon her and the Boston Dispensary in the same proportion as the benefit of the income. It would not be equitable to charge her, by reason of her occupation at the time of the assessment, with the present value of an annuity on the amount thereof; because she is not bound by the terms of the will to make her election immediately to occupy the estate throughout her lifetime, and if she should at any time hereafter elect to give up such occupation, she would be chargeable for the rest of her life with only nine fifteenths of the interest.

The result is, that the amount of the assessment for betterment is to be paid out of the principal of the trust fund, and interest thereon is to be charged by the trustees annually to Mrs. Dear-born so long as she shall live in the house; and the interest so charged is to be distributed between her and the Boston Dispensary in proportion to their interests in the income, by allowing her to retain nine fifteenths, and collecting from her and paying to that corporation six fifteenths thereof. If she shall at any time cease to live in the house, the trustees will have no occasion *549afterwards to keep a separate account of the interest on the sum paid out for the betterment; for that sum, having been paid from the principal of the trust fund, will proportionately diminish the income payable during the rest of her life to her and to the other cestui que trust. Decree accordingly.