146 Mass. 354 | Mass. | 1888
This is a bill in equity seeking to establish a trust in favor of the plaintiff, under her grandfather’s will, in respect of the income of the residue given to the defendant Ann C. Paine during her widowhood, and for the education and support of her children at her discretion. We shall assume that the plaintiff has a standing to maintain a bill, so far that, if it were shown that Mrs. Paine had not exercised in good faith the discretion given to her, this court might interfere. Wilson v. Wilson, 145 Mass. 490. But, in the absence of bad faith, we are of opinion that the testator’s grandchildren have no equitable interest or title in or to the rents, income, and profits given to Mrs. Paine, unless and until she exercises her discretion in their favor, and that, so far as appears, Mrs. Paine was entitled to appropriate the whole to her own use, as she has done.
The testator begins by stating his desire that the residue of his property should be secured for the benefit of his grandchildren, the children of his son Frederick William Paine,
The trusts are, first, that “ the said Frederick shall annually receive the rents, interest, and profits of said estates, and, after deducting the necessary expenses, &c., .... shall retain the balance in his own hands, to be applied by him at his discretion for the support, maintenance, and education of the children of the said Frederick and his present wife, Ann C. Paine,” &c. The will then goes on, “ and in the event of the decease of my said son, his said wife, so long as she shall survive him and continue his widow, shall in like manner receive the said rents, interest, and profits to her own use and for the education and support of my said grandchildren at her discretion.”
It is argued that the words “ shall in like manner receive ” mean that Mrs. Paine is to take upon the same trust as her husband, — that is, that the words “in like manner” qualify not only “ receive,” but also “ to her own use ” and what follows. But we think that, so far as they are more than a vague rhetorical introduction to the ensuing clause, they have no effect on any word except “ receive.” Looking back to the directions referred to, we think that only so much of these are meant as point out how Mr. Paine shall “ receive ” the rents, &c., and deduct expenses; not the subsequent directions to “ retain ” and “ apply ” the balance. Mrs. Paine cannot receive the income to her own use in like manner as her husband. It is not stated expressly that he shall receive it to his own use at all; and if she were to do so, as he did, the words would be inserted merely to arrest the legal title in her and leave her a dry trustee, whereas she is not to have the legal title after her husband’s
The words “ to her own use ” plainly mean that Mrs. Paine is to have a beneficial interest in the fund, as is further shown by the provision that on her second marriage the trustee shall hold to the use of the grandchildren. The following words mean just what they would have meant if the order had been changed, and they had read, “ and, at her discretion, for the education,” &c. If there were nothing in the will before the gift to Frederick, the husband, in trust, we should feel compelled to construe it as we have done; but when we see in addition that our construction carries out what the testator just before has declared to be his desire, we cannot feel any very serious doubt about the case. The provision is a most natural one, and it may be presumed that the testator was satisfied that he could leave the support and education of his grandchildren to their mother with safety. See Hess v. Singler, 114 Mass. 56; Sears v. Cunningham, 122 Mass. 538; Barrett v. Marsh, 126 Mass. 213; Lambe v. Eames, L. R. 10 Eq. 267; S. C. L. R. 6 Ch. App. 597; In re Hutchinson Tenant, 8 Ch. D. 540; In re Adams & Kensington Vestry, 24 Ch. D. 199; S. C. 27 Ch. D. 394; and cases below.
The direction that the testator’s son or his wife shall not be held to account for property personally occupied, does not affect the construction of the previous provisions. But for it, the son as trustee would be bound to account for such property. The wife receives from it an indirect authority to occupy, which, not being the trustee, she would not have otherwise; and she is exonerated from going through the form of accounting to the trustee, who, if she went through that form, would account to the court by paying back to her what he had received.
The direction that proceeds of conveyances of real estate shall be applied solely for the improvement of the testator’s estates, or for the education and support of his grandchildren, concerns the capital, which goes to the grandchildren.
The complainant makes a further claim under the will of her father, the residuary clause of which is as follows: “ I give to my wife, Ann G. Paine, all the rest of my estate, whatever the same may be, to be at her sole use and disposal. My said wife is fully acquainted with my reasons for this disposal of my
