261 Mass. 373 | Mass. | 1927
This is a petition for instructions by a trustee appointed by the Probate Court for the county of Worcester in 1915, under the provisions of R. L. c. 127, § 28, to sell land subject to a contingent remainder. The land in question was part of the estate of Lewis D. Jackson, the material portions of whose will are: "First. All of my estate both real and personal, I give, devise and bequeath to my said wife to have and to hold to her during her natural life, and I hereby direct that she may use and dispose of so much of the personal property outside of the income thereof as she may desire. At the decease of my said wife I give, devise and bequeath as follows: [several bequests follow] . . . Eighth. All the rest, residue and remainder of my property, both real and personal, in existence at the death of my said wife I give, devise and bequeath to said Lewis C. Benton and his heirs and assigns, if he shall be Hving at the decease of my said wife, but if he shall not be then living and if he shall leave no child or children living at his decease, then and in such case I give, devise and bequeath all said rest, residue and remainder to my three nephews Charles Jackson, Frank L. Jackson and John Jackson in fee simple share and share alike.”
The real estate involved in the case at bar was a "two thirds undivided interest in 12 acres of vacant land outside business section, City of Worcester” appraised at $600. It was retained by Mary A. Jackson, widow of Lewis D. Jackson, from the death of her husband in 1898 until 1915, when it was sold for $3,228.13 by a trustee appointed by the Probate Court under R. L. c. 127, § 28, on petition of the widow. Section 31 of this chapter provides that such trustee "shall receive and hold, invest or apply the proceeds of any sale or mortgage made by him for the benefit of the persons
The executors of the will of Mary A. Jackson contend that the amount paid by her for taxes should be first deducted from the amount received at the sale of the land and paid to them; that the balance after this deduction should be apportioned into principal and income, in such manner as to determine what amount of principal, invested at the death of Lewis D. Jackson at the current rate for trust funds, would result in a sum realized by deducting the $280.10 for taxes from the sum for which the land was sold; that the amount so determined as principal should be paid to the devisees under the will of Lewis C. Benton, who was residuary legatee and devisee under the will of Lewis D. Jackson and that the amount so determined as income should be paid to the executors of the will of Mary A. Jackson.
The executor of the will of Lewis C. Benton contends that he, as executor, is, and that Benton’s heirs and devisees as such, are not, entitled to the entire fund in the hands of the trustee (the petitioner) to be distributed, whether or not payment of said sum of $280.10 to the executors of the will of Mary A. Jackson shall be ordered, and said apportionment between capital and income shall be decreed. The petitioner asks instructions “as to his duty under the circumstances disclosed.”
By the terms of the will of Lewis D. Jackson, his wife, Mary A. Jackson, received a legal life estate in possession in all the real and personal property of the testator, with a limited power of disposal of the personal property. The will did not create a trust in the real estate, and the question does not here arise as to whether there was by implication or otherwise a trust created in the personal property. Whitcomb v. Taylor, 122 Mass. 243. Allen v. Hunt, 213 Mass. 276. Conant v. St. John, 233 Mass. 547, 551.
The first issue is whether $280.10 paid by the widow as taxes on this realty should be first taken from the $3,182.28, the balance of the sum received at the sale, and given to her
- The next issue is whether-the proceeds of the sale should be-apportioned, between principal-and income so as to de
■ “In a situation like the case before this court there is no room for the operation of the equitable doctrine that personal property given in general terms in trust to be enjoyed by several persons in succession imports an intent on the part of the testator that the gift should be converted into authorized investments and the income of the property so invested, or retained, be so divided or apportioned between the life beneficiaries and the remaindermen that the corpus of the fund shall be kept intact.” Old Colony Trust Co. v. Shaw, ante, 158, 167.
The final issue is whether the proceeds of the sale shall be distributed to the executor of the will of the remainder-man or to his devisees.' The life: tenant predeceased the
The petitioner is instructed that the $280.10 on account of taxes is not to be paid to the executors of the will of Mary A. Jackson; there should be no apportionment of principal and income between the executors of the will of Mary A. Jackson and the executor of the will of Lewis C. Benton; and the entire proceeds should be distributed by the petitioner to the executor of the will of Lewis C. Benton. Costs as between solicitor and client are to be determined by the Probate Court.
Decree accordingly..