Williams v. Thacher
71 N.E. 567
Mass.
1904
Check Treatment
Knowlton, C. J.

In the first of these cases the fundamental question is whether the trust shall be terminated, wholly or in part. The eighth clause of the will which created the trust is as follows: “ And when the youngest of my children who shall live *299shall arrive at the age of twenty-one years then I direct and request that my said trustees or whoever shall succeed them in said trust shall convey assign transfer set over and convey and pay to my children then living and to the issue then living of such as have deceased such issue of a deceased child of mine to take its deceased parents share by right of representation all the estate and property then remaining in their hands or possession and all increase thereof if any to have and to hold the same to them and their heirs and assigns to their use and behoof forever in fee simple.” If this were the only material provision, there would be no doubt that the trust should be immediately terminated; for the youngest of the children has arrived at the age of twenty-one years, and all parties interested in this part of the trust desire its termination. Bowditch v. Andrew, 8 Allen, 339, 341. Sears v. Choate, 146 Mass. 395, and cases cited. But there is a part of the property that is subject to a provision in the third clause, which requires the trustees to permit the testator’s sister, Caroline, during the term of her natural life, to use, occupy and improve the mansion house and the outbuildings and appurtenant lands which formerly belonged to the testator’s father, of which one undivided half belonged to the testator at the time of his death, and the other half belonged to this sister. The trustees are also required by this clause, to pay all taxes and assessments on the premises during the term of his sister’s natural life, or until such premises shall be sold and conveyed under the power given to the trustees. The tenth clause gives the trustees a general power to sell and convey the whole or any part of the real estate, and to hold the proceeds subject to the trust.

It is contended by the children of the testator that the first quoted provision for the termination of the trust, together with the power of sale given to the trustees, should control the provision for a life estate in the mansion house to his sister, and that the trust should therefore be terminated at once. It is contended by the sister that the trust must continue as to the whole property, not only for the preservation of her life estate and the payment of assessments and taxes, but also for the final disposition of the mansion house, and the division of the entire property of the trust, which is treated as one fund, to be kept together until the trust is finally terminated.

*300The intention of the testator in regard to the conditions now existing does not clearly appear. In some particulars the third clause of the will is inconsistent with the eighth clause. Probably he did not suppose that his sister would live long enough to make her life estate interfere with the termination of the trust when his youngest child should arrive at the age of twenty-one years. This child was less than a year old when her father died. There is little doubt that he intended to have his estate divided among his children when the youngest of them should become twenty-one years of age, and there is little doubt that he intended that his sister should have a life estate in the mansion house, or in the proceeds of it if it should be sold. We are of opinion that the trust for the benefit of his sister cannot be set aside or terminated in her lifetime, and that the trust must be continued so far as necessary to protect her rights.

On the other hand, it is in the power of the court, for good reasons, in certain cases, to terminate a trust as to certain property and to continue it as to other property. Inches v. Hill, 106 Mass. 575. Sears v. Hardy, 120 Mass. 524. There is much in this case to indicate that the termination of the trust when his youngest child should reach the age of twenty-one years, was an important, if not a paramount, purpose in the thought of the testator in reference to the final disposition of his property. So far as this pui’pose can be accomplished without defeating his purposes in other particulars, it should be accomplished. We are of opinion that the trust should be terminated as to all the property except that in which his sister has a life estate, and so much more as is necessary to be held for the payment of taxes and assessments upon the premises. This is in accordance with the rule applied in Sears v. Hardy, 120 Mass. 524, and is in conformity with the general purpose of the testator.

In Schaffer v. Wadsworth, 106 Mass. 19, a case somewhat like this, a different result was reached. But we are of opinion that the importance of the early disposition of the bulk of the property, as compared with that of the continuance of the trust without change, as indicated by the provisions of the will, was not the same as in the present case.

The other question is common to both of the cases. It is whether the testator’s children are to receive in each case the *301trust fund now in the hands of the trustee, in equal shares, so far as it is ready for distribution, or whether there is to be an equalization of the entire amounts received and to be received, including the sums paid as necessary for the support, maintenance and education of the children during their minority.

We are of opinion that the provisions of each will show the intention of the testator that the several children should not receive equal shares from the beginning to the final distribution, including that which was necessary for education and maintenance, but that they should receive according to their necessities until arriving at the age of twenty-one years, and after that time should be paid income, as prescribed by the will, until the time for the division of the fund, and that then the division of the amount in the hands of the trustee should be in equal shares to each. To give the will a different construction would require us to disregard language which seems reasonably plain.

Decrees accordingly.