Shaw v. Cordis , 143 Mass. 443 ( 1887 )

C. Allen, J.

If a testator leaves bonds which he owns to trustees, with direction or authority to hold the same, paying the interest to certain persons for life, with remainder over, the fact that such bonds are worth a premium at and after his death will not warrant the trustees in retaining any portion of the interest for the benefit of the remaindermen. To this extent, at least, the decisions heretofore made by this court agree. Hemenway v. Hemenway, 134 Mass. 446, 452. New England Trust Co. v. Eaton, 140 Mass. 532, 542, 543. In the present case, the testator did not own the bonds in question at the time of his death, but in his will he gave explicit directions to his trustees to convert the residue of his estate into three enumerated kinds of securities, which include these bonds; in which respect this case differs from that last cited above. It does not appear what value any of them then bore. It has not been intimated in the argument, and there is no legal presumption, and there is nothing in the known history of the time, enabling us to see that the testator must have contemplated that any of them could certainly be bought below or at par. So far as we know or can assume, they might cost a premium. Nevertheless, he left no discretion in his trustees to go beyond the securities particularly specified. The trust was to end with the death of his last surviving son, and thus might end at any time; possibly long before the maturity of the bonds. His sons were the prominent objects of his bounty. This was declared when the will first came before this court for construction. Treadwell v. Cordis, 5 Gray, 341, 355. Under these circumstances, having given this direction for conversion into the specified securities, which, after the manner of that time, he calls stocks, he adds the injunction “to pay over all the dividends and income of said stocks,” over and above costs and charges of the executors and trustees, “ as fast as they shall be received, in equal proportions, to each of my said four sons.” In point of fact, the trustees paid a premium for most of the bonds. It is not necessary, if it is possible, to lay down any further rule for the case than to look for the intention of the testator. The question is, whether any intention as to the disposition of the income, with reference to the respective rights of the life tenants and remaindermen, can be collected from the will. We think it can. The fair construction of the will leads to the conclusion that the testator intended that the whole income, after conversion into the prescribed securities, should be paid to his sons, without any deduction to make good to the remaindermen the premium which it might- be necessary to pay in purchasing them. See Lambert v. Lambert, 20 W. R. 943; Brown v. Gellatly, L. R. 2 Ch. 751, 758; Chancellor v. Brown, 26 Ch. D. 42.

Decree affirmed.