Westcott v. Nickerson

120 Mass. 410 | Mass. | 1876

Gray, C. J.

Where a testator bequeaths the residue of his personal property, without specific description or other words inlicating an intention that it shall be enjoyed in specie, first to a tenant for life, and then to a remainderman, and thus manifests Ms purpose that the same fund shall be successively enjoyed by both, the necessary inference and the established rule are that it must be invested as a permanent fund, and the value thereof fixed at the time when the right of the first taker begins, that is to say, at the death of the testator. And where, as in the present case, the property is then invested in a commercial partnership, and is directed by the testator to remain in that form for a short time, merely for the purpose of winding up the business of the partnership and ascertaining the amount of the fund, and not for the purpose of a lasting investment, the amount received upon the winding up of the partnership is to be distributed between the tenant for life and the remainderman, by computing what sum, if received at the death of the testator, adding interest at six per cent, with annual rests, would produce the amount afterwards actually received from the partnership, and by investing the original sum, so computed, as principal, and distributing the residue as income. Kinmonth v. Brigham, 5 Allen, 270. Sargent v. Sargent, 103 Mass. 297. Fearns v. Young, 9 Ves. 549. Meyer v. Simonsen, 5 De G. & Sm. 723. Brown v. Gellatly, L. R. 2 Ch. 751. Spear v. Tinkham, 2 Barb. Ch. 211. Decree accordingly.