May v. Brewster

Knowlton, C. J. This is a report from one of the judges of the Land Court upon a petition for the registration of a title. The question arises upon a petition for substitution, suggesting the death of F. W. G. May, one of the original petitioners, and asking to be admitted as successors to his title. He left a will in his own handwriting, which was made by him without the aid of counsel. Our decision depends upon the meaning of this will. The principal question, to which all others are subordinate, is whether he intended to have the will take effect upon his real estate, or only upon his personal property. He mentions no particular real estate, nor any particular personal property except his policies of life insurance, which he refers to as his only immediate assets of any considerable amount. He says, “ I direct my executors to proceed with moderation and patience but with due diligence to the winding up of my estate, wch largely consisting of real estate which is in my opinion of considerable value but more or less encumbered.” The term “ winding up ” implies a disposition of the estate which will turn it into money. He follows the direction with this provision : “ Then after the payment of debts and the legacies above named I direct the division of the. net proceeds into parts, one for each of my children as follows,” etc. The term “ net proceeds” refers to the money which will come from the sale of the property. The will nowhere refers to any distinction between real and personal property. The estate which is to be wound up, under the direction first quoted, is immediátely referred to as “largely consisting of real estate.” This is an express statement that the real estate is to be wound up, as well as the personal. Then the statement in regard to its value and the incumbrances upon it, and the suggestion that the executors shall proceed with moderation and patience, but with diligence, strongly imply that he was considering the real estate as a part of the property with which the executors were to deal. If we look at the final disposition of the property, we are [530] confirmed in this view. The net proceeds are to be divided equally among his children, and the shares of his four daughters are to be put in the hands of a trustee for investment, and to secure them from the interference of husbands, and “from all anticipatory action.” If the will was held to include personal property alone, there would be little, if anything, left for division and for the operation of this trust, after the payment of debts and legacies. There is a presumption against an intended intestacy, and it is not to be supposed that an old man owning real estate worth more than $130,000, and having personal estate amounting to only a little more than enough to pay his debts and legacies, would make a will which should have no reference to the real estate. Taking all the provisions of this instrument together, we have little doubt that the testator intended to have the real estate sold, and the proceeds divided in the settlement of his estate in the Probate Court. Where such an intention is plainly discoverable in a will, it gives to the executors a power of sale, without an express statement to that effect. Going v. Emery, 16 Pick. 107. Chandler v. Rider, 102 Mass. 268. Putnam v. Story, 132 Mass. 205, 212. This is a power coupled with a trust, and not a mere naked power. Chandler v. Rider, 102 Mass. 268, 271. In the present case the direction already referred to is to executors, and in another part of the will there is a reference to the executrix. But no executor was appointed, and the estate is being settled by administrators with the will annexed. A power of this kind, given to executors, is attached to the office and not to the persons. It therefore goes to administrators with the will annexed. Chandler v. Rider, ubi supra. Black v. Dexter, 12 Cush. 559, 568, 569, 571. Putnam v. Story, 132 Mass. 205, 212. We hold, therefore, that the administrators in this case have a power under the will, coupled with a trust, to dispose of this real estate and turn it into money. Under the decisions in Hammond v. Putnam, 110 Mass. 232, and Perkins v. Coughlan, 148 Mass. 30, it may be that, for some purposes, this real estate was constructively converted into personal property, as of the time of the death of the testator. In fact it remained in the form of real estate, and for the purposes of this case it must be dealt with as real estate. [531] The trust in Mr. Brewster* to receive and hold for the four daughters the money paid over by the administrators with the will annexed, does not affect the legal title to the real estate before it is disposed of. His first duty as trustee is to take the money when it is ready to be paid over. We are of opinion that this title is in the five children of the testator, subject to a power in the administrators with the will annexed, coupled with a trust, to sell the property, pay debts and legacies, and then divide the net proceeds between the testator’s son and the trustee for his four daughters. Decree accordingly..