Sanger v. Farnham

Braley, J. By the residuary clause the testator divided his remaining estate into two equal parts for the benefit of his son and grandson and directed that, “As soon as practicable after my decease and such division shall have been made my trustees shall pay to my said son Howard the sum of five thofisand dollars [37] in cash or its equivalent; the income of the remainder of his half shall be added to the principal as it accrues and at the expiration of five years from the date of said payment of five thousand dollars all the principal and accretions thereto shall be paid to my son Howard and the trust as to him closed.” It is manifest that the earlier the division, the sooner the son and petitioner would receive the first payment, and the time from which the five years were to run when the remainder of the principal became payable would be accelerated. The question for decision is, When did it become practicable for the trustees to make distribution? A part of the residue consisted of real property and before a division could be made under the scheme of the will and the trust fund created it would have to be converted. The trustees accordingly are authorized to sell and to invest the proceeds in such manner as they shall deem best. The trustees also were the executors, and until the settlement of the estate it could not be finally determined how much personal property would fall into the trust. The plaintiff, who appears to have been in necessitous circumstances, requested the trustees upon their appointment to make a division and pay to him the first $5,000, and to raise the money by a mortgage on the real estate. It is to be inferred that this request was on the ground that the balance shown by the executor’s first account was only a trifle more than half of the amount required.* The refusal of the trustees was justified. The power of conversion being “out and out,” they could sell but had no authority to mortgage. Kent v. Morrison, 153 Mass. 137, 139. It moreover was only when the estate had been closed, and the balance of the personal property had been transferred to themselves as trustees, that the residue and trust fund was capable of ascertainment. By the agreement which thereupon followed between the beneficiaries with the assent of the trustees, the plaintiff with full information as to the assets of the trust was to take as part of his share the real estate at a fixed valuation. If this had not been done no division until the realty had been turned into money could have been made. The plaintiff was not obliged to enter into the agreement. It was open to him to demand half of [38] the personal property with the acceptance of half of the real estate as his share. But not having done so, he must be presumed to have known that a sale must take place before the first payment would become due. The power to convert remained in the trustees for the purposes of the trust which would be only partially executed, and the single justice expressly found, that the plaintiff’s share could not have been fully satisfied except by using a part of the proceeds of the sale. The settlement was acted upon by all parties, yet it was not until something more than a year had elapsed that the trustees, with the consent in writing of the plaintiff, effected a sale and were for the first time enabled to carry out the provisions of the will. If, as the plaintiff now urges, there was unnecessary delay, it is chargeable to his own voluntary conduct and is not due to any delinquency of the trustees. The time of settlement under the finding appears to have been November 15, 1910, when the last payment immediately following the sale was made to the plaintiff. It was not until then under the circumstances, that they were able to obtain the money, and the execution of the trust became “practicable.” The decree of the Probate Court fixing August 10, 1909, as the date from which the limitation of five years is to be computed is to be modified by the substitution therefor of November 15, 1910, and when so modified it is affirmed. Ordered accordingly. Footnotes [*] The balance in the hands of the executors, as shown by this account, was $2,535.30.