Amory v. Green , 95 Mass. 413 ( 1866 )

Hoar, J.

The plaintiffs, trustees under the will of John S. Ellery, seek by their bill the direction of this court in the execution of their trust. Two questions are presented, upon which they have found a legal difficulty and uncertainty arising from adverse claims of parties interested, and they are entitled, for their own protection, to the advice and instruction of the court upon them.

The will authorized the trustees, upon the marriage of the testator’s daughter, “to invest for her benefit any sum of money, not exceeding twenty thousand dollars, in such dwelling-house, land, furniture and household goods as they may deem proper for her, and to hold the same in the names of said trustees during her life ; ” with a power of re-investment. She was his only child, and be had given the greater part of his large fortune for the benefit of her and her issue. We are all of opinion that there is no legal objection to making this investment at a place out of this commonwealth, if in the judgment of the trustees it is a suitable and proper place for her residence, under all the circumstances of the case. There is no limitation of place in the language of the will itself; and the obvious purpose of the provision is such that the ordinary rules relating to investments by trustees have little application. The testator could not know what marriage his daughter would make; and the house and furniture might be equally important to her comfort, whether her husband’s business or social relations, or her own health or tastes, might lead to the choice of a residence in this or some other state or country. The principal object of the gift was not pecuniary profit, or the convenience of the trustees, but to secure for his daughter and her family the comforts of a home. There is nothing in the policy of the law, or that we can find in the apparent wishes of the testator, to restrict her choice in marriage to a citizen of Massachusetts, or to impose as a condition that she should continue her residence here.

Nor is the time which has elapsed since the marriage an objection to the investment being now made. It was to be made “upon her marriage;” but it was designed as a provision for her through life, and may be made at such convenient time, having due regard to her situation and wishes, whenever, after the marriage, the trustees should think proper.

The amount to be invested, within the limit fixed by the will; how much of it should be put into a dwelling-house, and the land connected with it, and how much into furniture or other household goods; the suitableness of the place; the price at which the property can be obtained, and all the considerations which may make a purchase desirable or otherwise, having a due regard to the wishes, condition and relations of Mrs. Green, are matters upon which the trustees should exercise a sound discretion, for which we can see no occasion, and do not therefore think it our duty, to substitute the discretion of the court.

The cases cited to show that a court of equity will control the exercise of the discretion of trustees when there is cause for such intervention, undoubtedly support that proposition. The discretion given them confers no arbitrary or capricious authority ; and we should take care that a power confided to trustees be honestly exercised for the benefit of the cestui que trust In this case, however, there is nothing to show that they are not ready and competent to do their duty considerately, kindly and wisely.

Reasonable costs and expenses of the suit are to be allowed to all the parties from the fund.