Amory v. Lowell , 104 Mass. 265 ( 1870 )

Ames, J.

It is manifest that it was not the expectation or intent of the testator, that any part of the income which, by the terms of the will, was to be divided among his children, should in any event be derived from the dwelling-house and farm in Milton. On the contrary, that portion of his property was set apart for the exclusive enjoyment of his daughter Cornelia during her life, and after her decease for that of each of his sons, in succession. It is equally manifest also, that he intended that all the income which the trustees, under such management as they should think most beneficial for the testator’s children, hould derive from all the “residue and remainder” of his property, should be divided equally among them, “ towards their supnort and maintenance,” after deducting all necessary expenses for repairs, taxes, public charges and insurance. The fund which the will describes as divisible from time to time among them is spoken of as the net proceeds, or the net income, of the estates which the trustees are required to manage and take charge of, and of which they are to make such leases, upon such terms, time and conditions, as they shall think proper and most beneficial for the parties in interest. We find nothing in the will that affords any support to the claim that any portion of that income was to be given or appropriated by the trustees to the purpose of improving the estate at Milton described in the twelfth section of the will, or to the payment for any repairs or other charges upon that estate. The net income spoken of in the thirteenth section can only mean the amount of rents and profits remaining after the payment of taxes, insurance and repairs chargeable against the property from which those rents and profits are to be derived, that is to say, the property described in the thirteenth section. With regard to the dwelling-house and farm at Milton, the trustees are to hold the title, and, after the termination of all the intervening life estates, are to divide the property among the testator’s grandchildren; but it does not appear that they are to have anything to do with the use and occupation in the mean time. The twelfth section directs the trustees, after defraying the expenses of repairs, &c., to permit his daughter to occupy, use and improve that portion of the estate during her life. But, taking this clause of the will in connection with the obvious meaning of the thirteenth section, we do not interpret it as a direction to the trustees to pay these expenses themselves, or as signifying that funds from any other portion of the property shall be used to pay them, but as intending that the occupant of that dwelling-house and farm shall bear the burden of these charges. The result is, that the trustees, in paying any portion of these charges out of the income derived from the property described in the thirteenth section, would be acting under an erroneous interpretation of the will, and would have no right to charge any such payment in their accounts with the children of the testator.

We are equally clear, however, that all the accounts heretofore presented by the trustee, to which this plaintiff has assented by his signature under the word “ approved,” must be i-onsidered as no longer open to revision or objection. The plaintiff does not suggest that he was misled by any conduct on the part of the trustee, or that he labored under any mistake of fact. The mistake was mutual, in a case where all the parties had equal means of knowledge as to their relative rights and duties; and there seems to be no ground of law or equity for the interference of the court, for the purpose of disturbing a long series of deliberate and fair settlements.

Our conclusion therefore is, that the annual charges of taxes, insurance and repairs, upon the farm and homestead in Milton, are to be paid from the rents and profits of that estate, and that there is no other fund in the hands of the trustee upon which those expenses are a legitimate charge. The payment of those expenses appears to us to be one of the burdens which the testator has connected with the occupation of that part of the estate. The life tenant is under no obligation personally to occupy it, but is at liberty to rent it upon such terms as she can. If, as suggested in the answer, it cannot be rented on such terms as to keep down those expenses, the remedy for that inconvenience is not to be found in appropriating funds which by the terms of the will are not subject to that kind of charge.

In the actual posture of the case, it must be sent to a master, to inquire and report what is the condition of the estate in Milton, and to what extent are repairs and renovations necessary; what is its capacity to produce an income; and whether the rents and profits that it is capable of producing are sufficient to defray the expense of taxes, insurance and repairs; whether wood and timber have been cut down and removed since the probate of the will, and whether to such an extent or under such circumstances as to amount to waste; and what amount, if any, the trustee has diverted from the share of the income payable to the plaintiff, and expended upon the farm at Milton since the rendition of the last account upon which the plaintiff indorsed his approval. And all further directions in the case are reserved till the coming in of his report.

Ordered accordingly