Proctor v. Heyer , 1877 Mass. LEXIS 174 ( 1877 )

Colt, J.

The plaintiffs, trustees under the will of William A. Heyer, ask the direction of this court in the discharge of their trust. By the terms of the will, full power is given to them, as trustees, to sell the real estate devised “ on such terms and in such manner, and at such time or times, as they may think most advisable.” From the proceeds of the estate they are required to set apart funds for the benefit of the testator’s wife and mother, the incomes of which are to be paid to them, respectively, during life. The whole estate goes ultimately to the children and heirs at law.

The estate is still unsettled in the hands of the executor. The two years given to creditors for bringing actions, and within which legatees can only obtain payment by giving bonds of indemnity, have not expired. Gen. Sts. c. 97, §§ 5, 21. On account of mortgages assumed by the testator on land, the value of which is unknown, the liabilities of the estate are yet uncertain, and the executor is unwilling to close his administration and surrender the estate.

To these requests for instructions, the first answer is that it does not yet appear that there will be any estate remaining for the trustees after payment of debts, with reference to which the questions suggested can arise. There is no fund which they can be said yet to hold as trustees, in the administration of which these questions have arisen.

The other answer is, that there is no question of law here piesented to the court. The questions relate to the administration of a trust, in respect to matters which the testator has expressly-confided to the wise discretion of trustees selected by himself. There is no suggestion, from any quarter, that they are likely to abuse that trust, by an arbitrary or capricious exercise of authority. The judgment of this court cannot be substituted for the discretion of the trustees, reasonably and fairly exercised. Amery v. Green, 13 Allen, 413. Walker v. Shore, 19 Ves. 387, 392. Bill dismissed, with costs.