85 Mass. 121 | Mass. | 1861
The question at issue between these parties is, whether Joseph Russell, the husband of the testatrix, has under her will an annuity of $2000 fixed and certain in its amount, or under the provisions of the will directing a portion of her stocks or other property to be placed in trust for him and certain payments to be made to him, he was to receive the entire income of the fund thus set apart for his benefit.
It would have been easy to declare a bequest of the former character, making the same payable by the executor absolutely out of her estate generally, or to place in the hands of her executor or a trustee funds chargeable with the payment of such an annuity. It would have been equally competent for her to set apart such an amount of her estate as in the opinion of her executor might be deemed the proper amount substantially to effect that object, and to authorize her husband to receive the entire income arising therefrom. The question is, which of these modes was selected by the testatrix, as such intent may be gathered from the language of her will.
Although the question is not perhaps entirely free from doubt, yet, as it seems to us, the bequest falls more properly within the latter class. It is not the case of an ordinary bequest of a simple annuity directed to be paid by her executors. It is a case where the bequest was not intended to interfere with the full and final disposition of her estate, independently of the property set apart for the benefit of her husband. The residue of the property was at once to pass to other devisees. No provision exists in the will for adding any surplus of the income of the
It will be seen there was no other direction there but for the payment of <£54 12s. In the case before us, we find something more; and we find other parts of the will aiding us in the construction we put upon the will.
The court are of opinion that, looking at all the parts of this will and giving proper effect to its language, it must be construed as authorizing the executor to set apart so much of the property of the testatrix as would be sufficient to produce the annual sum of $2000; and that when such stocks or other property had, in pursuance of the will, been thus set apart, the husband was entitled to receive to his own use the entire dividends, interest or income arising therefrom, during his own life.
As to the amount of the fund that was set apart by the executor, there is no suggestion made that it was not done in good faith, or that it was so extravagantly large as to be objectionable on that account. The testatrix placed confidence in the executor to act upon this subject, and to exercise some discretion in reference thereto ; and there has been no attempt to set the same aside or to modify it, by application to any supervisory tribunal.
The respondents, in their arguments submitted to the court, have urged', as an objection to the maintenance of this bill, that the plaintiff has a plain, adequate and complete remedy at law. To this objection several answers may properly be given : 1st. It is a suit “ for enforcing and regulating the execution of a trust,” and is therefore a proper case for bill in equity. Rev. Sts. c. 81, § 8. 2. The parties, by agreeing to submit the case to the determination of the court upon a statement of facts, waive all objections to the forms of proceeding", unless that point is expressly reserved by them. 3d. The objection that the plaintiff has a plain and adequate remedy