183 Mass. 527 | Mass. | 1903
Jacob Wirth, his minor sister, and her guardian join as plaintiffs in this bill to compel the defendant, who is the administrator de bonis non with the will annexed of the estate of their father Jacob Wirth, to transfer to them in specie the property held and used by him in conducting the business of selling intoxicating liquors, which he is carrying on under and in accordance with the directions contained in the will of their father. Jacob Wirth, the elder, died on August 10, 1892, and this business has been carried on very profitably ever since, first by his widow, the executrix of his will, with the assistance of the defendant as manager, until her death in 1899, and since by the defendant, who is a nephew of the testator, and who, at the previous request of the widow, became administrator de bonis no?i with the will annexed, after her death. The will directs the executrix or her successor or successors, to continue the business in which the testator is engaged or interested at
This bill relates only to the business in Boston; and we may assume in favor of the plaintiffs that this business is so far separate from that in Providence that the court could deal with it by itself, if it were proper for the court to take a part of the assets of the estate from the hands of the administrator de bonis non with the will annexed, while other business of the estate remained unsettled.
The testator left two minor children, a son and a daughter. The son became of full age on May 19, 1901, and the daughter will become of full age on March 22,1905. We do not find it necessary to consider some of the interesting questions of law which have been argued with much ability by the respective counsel. The plaintiffs contend that the will creates a trust which may continue for an. indefinite period, extending beyond the expiration of twenty-one years from the end of a life or lives in being. The defendant, on the other hand, contends that the trust has reference to the settlement of the estate for the benefit of the legatees, namely, the testator’s wife and children, to whom
The plaintiffs contend, and the defendant admits, that since the death of the widow they are the only persons interested as beneficiaries in the property in the defendant’s hands, and they contend that the purposes of the trust have been accomplished, or that, if they have not, the trust is void, and therefore that they are entitled to a transfer of the property. The defendant contends that one of the purposes of the trust was to have the testator’s children receive the income from an exceedingly profitable business without personally managing it, and to have the management of the business, during the lifetime of his children, left to the discretion of his representative appointed by the Probate Court, rather than to the children themselves, subject only to the condition that the business should continue to be profitable.
The plaintiffs do not desire to have the business disposed of and the estate settled by a distribution of the proceeds in the ordinary way, for if that were done they would lose the benefit of a very large income which they are now receiving from the business, under the management of the defendant. They contend that they are entitled to have the business turned over to them as it is now being conducted, so that they may manage it.
Without deciding these and other questions which have been discussed before us, except in reference to the relief which the plaintiffs seek, and without intimating any opinion upon any other of the matters in dispute, we think that the facts do not warrant the court in ordering a transfer of the business to the plaintiffs. The executrix took charge of the business and conducted it from the time of the testator’s death as a part of her official duty to collect the asséts and make them available for the benefit of the legatees, in the way directed by the will. The defendant, under the provisions of the will, is the successor of the executrix, and he manages the property as an administrator de bonis non with the will annexed. If we assume in favor of the plaintiffs that they are entitled to have the trust terminated, the ordinary way of closing it, inasmuch as the
Bill dismissed.