210 Mass. 347 | Mass. | 1911
The trustees bring these petitions for instructions as to their respective duties under the wills of Harriott E. Edmands and of her father, John Rayner. It is contended by the defendant, Roxa S. Southard, a great-granddaughter of the testator, who with the defendant, Horton Edmands, a great-grandson, are his only surviving lineal heirs, that the trust created by John Rayner’s will offends the rule against perpetuities, and also imposes an illegal restraint upon alienation, and, there now being no interests which have not vested or been determined, that it should be terminated and the property conveyed in fee.
The bulk of the testator’s estate consisted at his death of three parcels of realty, each subject to a mortgage. In the third clause of his will he devised the equities to trustees to whom the petitioners have succeeded, and directed that the income and profits be collected, and after payment of all necessary outlays and expenses, with a reasonable compensation for themselves, one half of the net income thus ascertained should be paid in certain proportions to his children and grandchildren, who are specifically named, and the remaining half was to be
But, while the nature of their title has been discussed without reference to the provisions for the application of income in payment of the outstanding mortgages, the objects of the trust are so connected and interdependent that its character and validity are to be determined from all the language employed by the testator. We accordingly turn to the seventh, eighth, and ninth clauses of the will.
But the further provisions in the eighth and ninth clauses cannot be disregarded. By the eighth clause while the replacement of buildings which might be destroyed by fire or other casualty, and their preservation by suitable repairs from depreciation and decay may be treated as matters of necessary administration, the general authority empowering the trustees to erect in their discretion new buildings, and the placing of new mortgages to defray the expense, and by the ninth clause, that they may substitute new mortgages for a like amount to those in force at his death if the mortgagees demand payment, far exceed a direction to trustees to apply income in payment of designated mortgagees until their debts are extinguished. The trustees could reconstruct, improve and enlarge the buildings, and erect new buildings and mortgage the trust estate to pay for the outlay. The term, therefore, would end, and a conveyance under the tenth clause of the will could be made only when the mortgage debts thus created had been satisfied. It doubtless was the testator’s intention, when the entire will is considered, to provide only for his ehil
By the will of Harriott E. Edmands she devised her quarter share to trustees to hold until the trust in her father’s will was determined. The equitable life estate given to her husband under the third clause, having fallen in by his death, and the trust having been ended, the fifth, sixth and seventh clauses disposing of the fee become operative. We are asked to construe the fifth clause which disposes of one third to her nephews and nieces, who are specifically named, and all of whom survived their aunt and uncle. But, as they took a vested remainder, whether the devise over to their unborn children is void for re
The children and grandchildren are deceased and it appears that by descent and devise Roxa S. Southard, Horton Edmands and Francis 0. Welch as he is trustee under the will of Thomas 'F. Edmands have succeeded to the title of the original devisees, and there are no contingent interests. The trustees under the will of John Rayner are to convey the property to them discharged of the trust, to hold as tenants in common according to their proportionate shares, subject, however, to the mortgages on two of the parcels, the validity of which is not questioned. Bowditch v. Andrew, 8 Allen, 339. How v. Waldron, 98 Mass. 281. The undistributed net income, if any, accruing since the death of J. Rayner Edmands, or which has accumulated, pending the controversy, is to be divided among them in the same proportions.
The defendant, Roxa S. Southard further contends that “ the termination of the trust, according to its terms, has been thwarted by the failure of the trustees to realize upon security belonging to the sinking fund, to wit, the assigned interest of John J. Rayner in the estate ” and “ that after his assignment, a proper administration of the trus,t would have annually turned into the sinking fund John J. Rayner’s income therefrom.”
The details and terms of the decree in each case are to be settled before a single justice. Sears v. Hardy, 120 Mass. 524, 542.
Decree accordingly.
The argument of the defendant Roxa S. Southard on this point, as stated in her brief, is as follows: “ Upon this point, this defendant calls the attention of the court to the fact . . . that the present value of the one third interest of John J. Rayner in the trust estates is one third of the present net value of the estates, namely $426, 266.07, or $142,088.89. The present outstanding mortgages are $105333.33. Therefore the admitted present value of the security held in the trust fund by the trustees against the debt of a former trustee is $37,000 in excess of the mortgages now outstanding.
“ The debt of John J. Rayner was on December 31,1875, $44591.47.
“ Assuming that the then beneficiaries had a right (which this defendant denies) to waive interest on this indebtedness up to December 2, 1881, it can hardly be questioned that from that time to the present such indebtedness should bear interest at the legal rate, and such interest from December 2, 1881 to December 2,1910 amounts to $77,589.16, making a total indebtedness from John J. Rayner belonging to the sinking fund of the John Rayner trustees of $122,180.63.
“It is unquestionable that it was the duty of the trustees, immediately upon the assignment by John J. Rayner of his interest to secure his indebtedness, to realize upon the security and make good the depleted sinking fund.”