Marsh v. Renton

Wells, J. The will authorized the distribution of the trust fond in such mode as the committee of gentlemen, to be se« [135] lected, should determine. They appointed definite sums to be paid to each institution named by them as recipients; with a provision as to any residue that might be found to exist. This appointment did not vest in those institutions an interest in any portion of the fund specifically; and, although the intention was to distribute the entire fund, the provision as to the surplus shows conclusively that the amount assigned to each institution did not represent a proportionate share of the whole. It is therefore impossible to say that the several institutions are entitled to take the income of any specific part of the fund; or to take a share of the whole income proportioned to the amount of the principal designated to be paid them. They are entitled to the usual allowance of interest from the time the legacy- became payable; namely, from the return of the report of the committee. If the income had been less than six per cent., they would not have been obliged to abate any part of their claim for full interest, unless the whole fund had proved insufficient to pay it. It is not the case of an executor or trustee neglecting to set apart a fund, contrary to his duty, and taking to himself the advantage of the greater income. In such a case, he might be charged with a trust, in favor of the party whose fund he had withheld and used, for the full amount of income received. Here, he is chargeable simply as trustee of the whole fund, under the will; and is in no fault for the retention and delay in the separation of the several interests therein. He must indeed account for the whole income; but he is to do so only as the general trustee under the will; and. the benefit from an income greater than interest will accrue, as would the loss if it had been less, to the surplus. This disposes of three of the questions submitted to us. The fourth and fifth relate to the appointment of one to fill the place of a member of the committee who has died since the first report. The will contemplates the concurrent action of three or more gentlemen. We are of opinion that no further distribution can be made until the vacancy is filled; and that it can only be filled by the selection and appointment of the trustees acting under the will. [136] Another question has been discussed before us, and instructions asked thereon; namely, Whether, in executing this charitable trust, institutions organized as corporations since the creation of the trust may be selected as recipients of any portion of the fund ? As the bequest was not made for the benefit of any particular institution, and as they are to be selected merely as means or instruments to carry out the charitable purposes of the testatrix, we can have no doubt that payments may be directed to be made to any institution, which, at the time of such appointment, comes within the description of a “ permanently established and incorporated charitable institution.” Instructions accordingly.