192 Mass. 79 | Mass. | 1906
These three suits in equity were consolidated and heard together before a single justice, and reserved for the consideration of the full court. The last of them, which we will consider first, is a bill by an administrator de bonis non with the will annexed of Hannah E. Cogswell, late of Brookline, deceased, asking for instructions in the settlement of her estate. It is necessary to sell real estate to pay debts and charges of administration, and the first question is whether the legacy to Helen R. Robinson, the sister of the testatrix, of “ all moneys or estate that may be recovered in the action of law . . . against one Francis Fisher Robinson and one Charles C. Morgan, named as trustee in said action,” which moneys amount to $984.60, collected by the plaintiff as the proceeds of the judgment obtained in the action, is to be paid in full to the legatee or to be diminished by way of contribution for the payment of debts.
We are of opinion that this was intended by the testatrix to be a specific legacy, and therefore not subject to be diminished by way of contribution so long as there is property devised generally sufficient for the payment of the debts. R. L. c. 135, §§ 26, 27. Blaney v. Blaney, 1 Cush. 107, 115. This sum, with any interest that has accrued thereon, should be paid to Helen R. Robinson.
Another question is whether the mortgage of $5,000, which is an incumbrance outstanding upon a part of the real estate, is a debt of the estate to be paid by the plaintiff. Upon the facts stated, this debt appears to be barred by the special statute of
The question most discussed among the parties relates to the request for an instruction to the plaintiff as to which of the parcels of real estate he first shall sell or mortgage,, and which of the parcels he thereafter shall sell or mortgage if it becomes necessary to sell a second parcel. The power to authorize such a sale, of real estate resides in the Probate Court, under the R. L. c. 146, §§ 6-8. In a proceeding of this kind this court cannot direct or control the Probate Court in its action under these sections. All parties interested join in the prayer of the plaintiff for instructions on this point, and we think the court properly can instruct him" as to his action in making an application to the Probate Court. The decision on his application will depend upon the view of that court, dealing with the case as it then is presented.
The testatrix made her son and her brother executors of her will. After providing for the payment of her debts and funeral expenses, and for the disposition and care of her cemetery lots, and after giving to her sister her wearing apparel and the specific legacy already referred to, she gave to her son Dr. Cogswell and her brother Dr. Hall, “ their heirs and assigns in fee simple,” all her real estate. She then made numerous provisions as to the management and disposition of it, and as to payments to be made from the proceeds of it; Although she did not use the word “trust” or “trustee,” we think the effect of the will is to give to Dr. Cogswell and Dr. Hall the legal title to all this property, to be held in trust to manage and finally dispose of it according to the directions subsequently given in the will. In Hall v. Cogswell, 183 Mass. 521, 523, it is said that the clause giving Dr. Cogswell $6,000 out of the proceeds of the sale “ creates a trust or a charge on these two houses.”
The double dwelling house numbered 9 and 11 Centre Street, built by the testatrix, is treated by her in different particulars as one estate. She provides that it shall not be sold until the expiration of five years after her decease, and she refers to “ the
Under the trust one third of the net income of the premises on Beacon’ Street-is to be paid to Dr. Hall during his natural life. This indicates an intention of the testatrix that this property should be held and used to produce income during the joint lives of Dr. Cogswell and Dr. Hall. While we have no doubt of the power of the Probate Court to authorize the sale of this property as well as the other if needed for the payment of debts, this provision, as well as the provision for the investment of the proceeds of the sale of the Centre Street houses in other real estate in Brookline or Boston during the lives of all these beneficiaries, shows an intention on the part of the testatrix that the property on Centre Street might be sold at any time after the expiration of five years, and that the property on Beacon Street should be held so long as Dr. Cogswell and Dr. Hall both live. We therefore instruct the plaintiff that it is his duty first to apply for leave to sell or mortgage the property on Centre Street.
It does not appear from the pleadings and agreed facts whether the interests of the beneficiaries will be promoted by selling both parts of the house on Centre Street at the same time, or by selling only one, provided a sale of one would enable the plaintiff to pay all debts and charges of administration. We therefore are unable to instruct the plaintiff on this point. We see no reason why he may not properly make his application in either form as seems to him best.
If there is any surplus in the plaintiff’s hands after paying
Upon the facts agreed, Helen R. Robinson, the plaintiff in the first case, is entitled to receive from this property such sum as is necessary to secure for her a suitable and comfortable maintenance during her natural life. It is the duty of the defendants Cogswell and Hall, as trustees holding the property, to provide this maintenance. If they fail to perform this duty the plaintiff can have the trust administered by others who will have regard to her rights. Her case will stand for hearing before a single justice upon an application for an amendment, or otherwise, as she shall be advised.
Upon the acts now appearing the court cannot decree relief to the plaintiff Cogswell in his suit against Hall and others. As it is likely that proceedings by the administrator to obtain money for the payment of debts will materially change the existing conditions, this case may stand for such action, if any, before a single justice as the rights of the parties demand.
So ordered.