Parker v. Cobe

Loring, J. It is the settled law of England that a bequest of money to be used in the purchase of an annuity gives the legatee a right to the money and he can insist that the annuity shall not be bought. Yates v. Compton, 2 P. Wms. 308. Barnes v. Rowley, 3 Ves. 305. Bayley v. Bishop, 9 Ves. 6. Dawson v. Hearn, 1 Russ. & M. 606. Kerr v. Middlesex Hospital, 2 DeG., M. & G. 576. Ford v. Batley, 17 Beav. 303. Stokes v. Cheek, 28 Beav. 620. In re Mabbett, [1891] 1 Ch. 707. In re Robbins, [1907] 2 Ch. 8. For further cases see 2 Am. & Eng. Encyc. of Law, (2d ed.) 399. In the United States there is a decision to the same effect by an inferior court (Reid v. Brown, 106 N. Y. Supp. 27), and, so far as we know, no case to the contrary. This rule has found its most frequent application in case of bequests to be laid out in the purchase of annuities. But it is a general rule applicable to a bequest to be laid out in the purchase of any object. See for example Barlow v. Grant, 1 Vern. 255; Nevill v. Nevill, 2 Vern. 431; Barton v. Cooke, 5 Ves. 461; Lonsdale v. Berchtoldt, 3 K. & J. 185. The reasoning on which the rule is established is that the legatee can sell the particular object as soon as it is bought and the law will not require the performance of a nugatory act. Consequently it is of no consequence that the particular object is to be bought by the executor and not by the legatee. See for example Dawson v. Hearn, 1 Russ. & M. 606; Ford v. Batley, 17 Beav. 303; Stokes v. Cheek, 28 Beav. 620; In re Robbins, [1907] 2 Ch. 8; In re Brunning, [1909] 1 Ch. 276; Reid v. Brown, 106 N. Y. Supp. 27. The case at bar is not a case where $75,000 was left upon the trust that the income of it should be paid to Ruth H. Cobe during her life, but it is a case where the $75,000 was to be laid out by trustees in the purchase of an annuity for Ruth H. Cobe during her life. For that reason it is not a case within the rule of Claflin v. Claflin, 149 Mass. 19. The $75,000 was to be laid out in the purchase of an annuity [264] in the case at bar by trustees and not by executors. In our opinion that makes no difference. Where the only duty to be performed by a trustee is to buy a particular piece of property for the cestui que trust, which piece of property the cestui que trust can sell as soon as it is bought, the rule of' a bequest for a particular object applies and the cestui que trust is entitled to the money. The purchase is as much a nugatory act in case of a trust as it is in case of a bequest, and the same rule governs both cases. We are of opinion that interest should be paid on the $75,000 from the expiration of one year from the testator’s death, under the usual rule, as to which see Thayer v. Paulding, 200 Mass. 98, 100 (where the cases are collected) and Clafiin v. Holmes, 202 Mass. 157. The bequest in the case at bar was a .bequest of $75,000 to be laid out in the purchase of an annuity, not the bequest of such sum as would purchase an annuity of a specified annual amount, as was the case in In re Robbins, [1907] 2 Oh. 8, where it is held that the annuity began at the death of the testator. The question decided in the case at bar was a question between Ruth H. Cobe and the executors. The only possible interest which the residuary legatees could have had in the matter was in the payment of interest on the $75,000. It affirmatively appears that there was no difference between them on that point. There was no occasion for making them parties defendant. A decree should be entered directing the plaintiffs to pay to Ruth H. Cobe $75,000 with interest from the expiration of a year from the death of the testator. So ordered.