Hidden v. Hidden

Gray, J. The principal objects for which the testator put his estate in trust appear by his will to have been the following : First. That, “ out of the rents and profits of the estate,” an annuity of two hundred and fifty dollars should be paid to his widow. Second. That any surplus income, after payment of this annuity, should be invested to create a provision for his grandson, George H. Day, upon his arriving at the age of twenty-one years. Third. That, upon the death of that grandson under twenty-one years of age, the sum so invested and all the rest of the estate should be paid to the testator’s son, James E. Hidden, for life, with remainder to his heirs, provided that he should first secure to the testator’s widow the payment of two hundred and fifty dollars yearly during her life. Upon the death of the grandson, the son was entitled to a conveyance of the whole estate on giving such security. It does not appear that be has had any opportunity to elect whether he will comply with the terms of the condition and take the estate. If he should so elect, there would be no occasion and no authority to order a sale of the estate. If he should not, he would not be entitled to the estate under the will; the estate would remain in the hands of the trustee; and if unproductive of income, it would be within the discretion of the court, in the exercise of its jurisdiction in equity, to order the trust estate to be sold and the proceeds reinvested; in which case the rents and income, not exceeding two hundred and fifty dollars a year, would be payable under the will to the widow for fife, and the question of the right to the principal could not be determined till her death. A petition to this court for such an order may, by the express terms of the St. of 1864, c. 168, be presented either by the trustee or by any other party interested in the trust estate. But the trustee, when not himself the petitioner, must of course be made [62] a party, by notice or assent. The cause must therefore stand for a hearing of the widow, the trustee and the respondents before a single justice upon the question of the time to be allowed to James E. Hidden to elect whether he will take the estate, giving the requisite security ; and, if he elects not to do so, then upon the further question of the expediency and the manner of a sale of the estate and investment of the proceeds by the trustee or his successor. Ordered accordingly.