William Hilton, the testator, died on December 25,1887, and the plaintiffs are the executors and trustees under his will. By the first article of the will he gave to his wife the household furniture, etc., and directed the executors to pay her $3,000 immediately after his decease. By the second article he gave to his trustees his dwelling-house on Commonwealth Avenue, Boston, for the benefit of his wife, during her life, and after her decease for the benefit of his daughter, Catherine Hilton Fiske, during her life, with power of sale on the written request of the wife, or, after her decease, of the daughter, and of reinvestment in another dwelling-house, or in a separate trust fund for the benefit of the wife, which after her death was to be added to the principal of the trust fund thereinafter created for the daughter.
The third, fourth, and fifth articles of the will are as follows :
“ Thirdly. I give to my trustees hereinafter appointed the sum of three hundred thousand dollars, to be set apart, held, and invested as a trust fund, upon the trusts following: to wit, the trustees shall, during the life of my beloved wife, pay from the income thereof the taxes, common repairs, and premiums of insurance on the Commonwealth Avenue or any substituted estate, and shall pay all the residue of income to her for her personal disposal in the manner hereinafter appointed for all payments of income from trust funds. I direct my executors to set apart this trust fund as soon as possible. If there is delay in setting it apart, I direct my executors to pay to my wife, as interest, and in lieu of the income, three thousand and six hundred dollars at the end of every three months from the day of my decease, or a proportional sum for so much of the principal as shall not be set apart, and for the time of such delay until the completion of the
“ Fourthly. I give to my trustees hereinafter appointed the further sum of three hundred thousand dollars, to be set apart, invested, and held as a trust fund upon the trusts following: to wit, the trustees shall during the life of my beloved daughter, Catherine Hilton Fiske, pay all the income thereof to her for her personal disposal in the manner hereinafter appointed for all payments of income from trust funds, excepting such sums as the trustees, after the decease of my wife, may pay for the taxes, common repairs, and premiums of insurance on the Commonwealth Avenue or any substituted estate, as during the life of her mother. The payments of" income of both trust funds shall be quarter-yearly, or at shorter periods, at the discretion of the trustees. I direct my executors to set apart this trust fund as soon as possible. If there is delay in setting it apart, I direct my executors to pay to my daughter, in manner aforesaid, as interest and in lieu of income, three thousand dollars at the end of every three months from the day of my decease, or a proportional sum for so much of the principal as shall not be set apart, and for the time of such delay until the completion of the trust fund. The income of this trust fund and of the increase thereof from the proceeds of the Commonwealth Avenue or any substituted estate, is to be paid to my daughter during her life. , After her decease, if she leave issue surviving her, I give the whole principal of her trust fund, and the increase thereof, to be paid or transferred to her surviving issue, who shall take and hold the estate and property in absolute ownership. If such issue be more than one person, such of them shall take, and in such shares, as would receive the same by succession or inheritance from her if she at the time of her decease was in possession thereof as absolute owner, discharged of all trusts. If she leave no issue surviving, the trust fund with its increase as then consisting shall be appropriated as appointed in the fifth article now following.
“ Fifthly. After the decease of my wife the trust fund for her, as it shall then consist, shall be applied by the trustees to the payment of the following legacies. If the principal sum has not been set apart as a trust fund, the same shall be paid by my exec
Then follow legacies amounting to five hundred and thirty thousand dollars to different institutions, and to the town of Salisbury. By the sixth and the following articles he disposes of “ the residue of my estate, including the residue from the principal of the trust funds.”
It is agreed among other things as follows:
“ The wife of the testator survived him, and died on the 27th day of November, 1895. At the time of the decease of the testator, his property was sufficient to set apart the trust funds for the benefit of his wife and daughter in full, and there was also a considerable residue of the estate which was duly paid over to the widow of the testator as his residuary legatee. In accordance with the provisions of the third clause of the will, the executors set apart the trust fund given for the benefit of the wife, Esther A. Hilton, to wit, $300,000, in certain securities and cash then held by them as executors of the will of William Hilton ; and on February 23,1888, the executors transferred and paid over to the plaintiffs, trustees under the will of the fund in trust for the benefit of the widow, Esther A. Hilton, the amount so
Since the death of the wife of the testator the trustees have sold the dwelling-house on Commonwealth Avenue under the second article of the will, and hold the proceeds thereof, amounting to over $70,000, for the benefit of the daughter, according to the provision of this article.
The claim of the daughter is that the deficiency now existing in the $300,000 trust fund held for her benefit should be made up out of the principal of the trust fund of $300,000 which was held for the benefit of the wife during her life, before this principal should be distributed among the legatees named in the fifth article. We are of opinion that this claim is without foundation. The two sums of $300,000 each, were fully set apart, held and invested by the trustees as trust funds according to the third and fourth articles of the will, and the estate of the testator was sufficient at his decease “ for the setting apart of both the trust funds in full.” There was no deficiency in either trust fund when they were set apart. • A depreciation in the value of the trust securities after they had been set apart and the trust funds fully constituted is not within the language of the will, and the making up of any such deficiency in either fund out of the principal of the other is nowhere provided for in the will. By the fifth article, if the principal sum of the trust fund for the wife has not been set apart, then the same shall be paid after the decease of the wife by the executors to the legatees named in that article; but if the principal sum has been set apart, the trust fund, “ as it shall then consist,” shall be applied by the trustees to the payment of these legacies. • There is a similar provision concerning the trust fund for the daughter, if she dies leaving no' issue surviving her. It is only in the event that the trust funds are not set apart in full by reason of the insufficiency of the estate at the decease of the testator, that, on the death of the wife or of the daughter without issue surviving her, the deficiency in the trust fund of the survivor is to be made up from the principal of the other fund. The clause in this article which reads,
‘6 The following legacies are to be paid only after full provision of income for my wife and daughter during their respective
Decree accordingly.
