Chase v. Davis

Danforth, J. This is a bill in equity to determine the construction of the will of Samuel Chase. It appears by the will that certain property was given to John D. Chase, and Stephen B. Chase, to hold in trust for Samuel Chase, jr., and Sophia C. Davis, which trust in certain contingencies, requires the exercise of personal discretion. Said trustees were also appointed executors of the will, and were duly qualified to act in each capacity. Subsequently the said Stephen died, and Howard B. Chase, one of the plaintiffs, was appointed and qualified as trustee and executor, in his place. Upon these facts the question is submitted, “Whether the discretion which is vested in the trustees by the fifth clause of said will, was limited to the trustees named in said will, or can be exercised by their successors.” In this respect, as in all others when it can be done without a violation of law, the will is to be so construed as to carry out the intention of the testator. In the (clause of the will referred to, there is no provision made as to what is to be done, in case of the death, resignation, or refusal to [106] act, of either or both of the trustees; nor do we find anything that leads to the conclusion, that in. any event the provisions of the will were not to be carried out; no indication that the legacies were to fail. Under these circumstances, we must presume the testator relied upon the law to supply what he had failed to do, and which was enacted for such cases. R. S., c. 68, § 6, 'is amply sufficient for this purpose,' and* gives to the successors the same powers including matters of discretion, as were vested by the will in those originally appointed. The second question is,- “whether the discretion which is vested in the trustees by the fifth clause in the will, is limited to the portion of the residue which is vested in the trustees by said clause, or includes the portions of the real estate specifically described and vested in said trustees, by the second clause thereof.” As no real estate is described or referred to in the second clause of the' will, but in the fourth item, is specifically described and vested in trustees, we suppose it to be this real estate referred to, and answer the question accordingly. The real estate given in the fourth item is specifically described, the property given in the fifth item, is the residue, and includes personal property. The conditions of the trust, the disposition of the income, and in case of sale, the proceeds are the same in both cases. In the fifth item, after constituting the trusts, and providing that “the income and proceeds thereof be appropriated as provided in item fourth of this will;” the testator further provides, that in a certain contingency, the trustees at their discretion, may convey to the beneficiaries, their respective shares of “said trust estate.” The words, “said trust estate,” would naturally include all the property left in trust, and we find nothing in the will tending to show that the testator used them in any other sense. That one part is a specific legacy, and another part is a general one, is a sufficient explanation of the fact that all is not put into one item ; but no reason appears, why in other respects any distinction should be made. As the testator in all other respects, treated the two legacies as one, our conclusion is, that the trustees have the same discretion over each, and that they may, in the [107] exercise of their discretion, if they see fit, convey to said beneficiaries, the whole or any part of the property vested in them in trust. This is also an answer to the third question. In regard to the fourth question, it was clearly the intention of the testator that the balance due on the note against Samuel Chase, jr., after deducting the $1500 and $4000, referred to in the will, should remain an existing debt, and be collected by the executors as a part of the assets of the state. But as the collection of the debt would increase the residue to that extent, it is equally clear, that under the fifth item of the will, one-fifth part of it would go to the trustees for the benefit of the maker. In making up this residue the amount due on the note must be counted as assets. In the division, the maker gets one-fifth, and the other legatees four-fifths. The result is, that in accordance with well settled principles of law, four-fifths of the amount due on the note is a charge upon the legacy to Samuel Chase, jr., for the benefit of the other legatees. Hobart v. Stone, 10 Pick., 215. As regards the fifth question, we find no such legacy as $1500, in the first or second, or any other clause in said will. In the first clause is a legacy of $1000, and in the second clause one of $800. Both of these legacies are general, and in no sense specific. The real estate devised in the fourth item, is a specific legacy. As a general legacy cannot be a charge upon a specific one, so the legacies of $1000, and $800, can, neither in whole or in part, be a charge upon the real estate devised in the fourth item of the will. The plaintiffs will be entitled to a decree in conformity with the principles of this opinion, costs to be paid by the estate. Appleton, O. J., Walton, Barrows, Yiegin and Peters, JJ., concurred.