Purdie v. Whitney , 37 Mass. 25 ( 1838 )

Shaw C. J.

delivered the opinion of the Court. This case comes before us on the bill and answer. The question is, whether the conveyance made by Whitney, as a trustee under the will of John Pratt, was well made, i nder the power vested in him as trustee.

This is not to be regarded as a mere naked power. On the contrary, the estate is devised to- George Pratt, in fee, but upon certain trusts specified in the will, and the question is whether it is within the scope of those trusts to alienate any of the real estate. This is not a mere trust to hold for the Denefit of the cestui que trust, or to permit her to occupy or dispose of otherwise ; but it is an active trust, to hold the estate and apply the income and principal in certain modes stated. Among other things, all that part of his estate formerly given to his daughter Eleanor, the plaintiff, he now gives to his son in trust, to invest and re-invest in stocks or safe securities, and the income thereof, with $200 of the principal, to pay annually. Now this carries an implication strictly necessary, that the real estate may be sold, because in no other mode can it be invested in stocks. Besides, suppose there is not personal estate enough to pay over $200 annually in money, still it is to be paid in money ; but the trustee can be enabled to pay money only by the means of a sale. This shows then, that he has a power to sell, and having such power there is nothing to limit it, but that sound judgment and discretion and that good faith, which are the foundations upon which such trusts are created.

The Court are of opinion, that the trustee had power to make the sale set forth in the bill, that the estate well passed by it discharged of the trust, and that the defendant Pratt took a good title discharged of the tiust.

Decree accordingly.