Slater v. Hurlbut , 146 Mass. 308 ( 1888 )

0. Allen, J.

The question in this case is, whether under the terms of the will the executor is entitled, against the wishes of the residuary devisees, to continue in the management and care of the real estate left hy the testator, and to receive the compensation provided in the will for such service.

So far as the personal estate of the testator is concerned, the executor has performed his duties and discharged his trust; unless hereafter the stolen bonds or some of them shall be recovered. There is nothing to show any probability of his receiving anything from this source. Two years have expired since the filing of his bond, and full distribution has been made of all the personal property in his hands. It is not contended in argument that the fact of the outstanding bonds furnishes any reason for his continuing in the care of the real estate.

The real estate of the testator was disposed of in this manner: certain of it was given to his wife, for her life, and all the residue, including the remainder of that given to his wife for life, to his sisters. There was a provision that his wife should keep the dwellings upon the land devised to her for life in good repair and insured, and should pay all taxes on the same. But the executor contends that the later provisions of the will have the effect by implication to vest in him an estate in trust in the whole or a part of the real estate, by conferring powers and imposing duties in respect to the same which cannot otherwise be properly executed and performed. Fay v. Taft, 12 Cush. 448.

In respect to the estate devised to the testator’s wife for life, it is not to be supposed that he intended that the executor should exercise the powers and duties which are mentioned, because, in the first place, the testator imposes on her the duty of paying for repairs, insurance, and taxes, and gives to her certain personal property wherewith she may be able to do it; and, moreover, the executor would hare no means with which to pay these expenses except from the residuary estate, unless it could be supposed that the testator meant that his wife should furnish to the executor the money for these purposes. Besides, the testator authorizes the executor, upon the request in writing of his sisters, under certain circumstances, to sell the real estate; and if he intended to include in this authority the land given to his wife for life, it would seem probable that he would have required her consent also. It must he considered that the testator did not intend to give his executor authority over the estates devised to his wife for life, although in terms the language includes all of his real estate. This conclusion is more easily reached, because the whole will shows a considerable want of accuracy in the use of language.

In respect to the residuary estate devised to the testator’s sisters, the question is certainly far from clear, and it must be conceded that it is not easy to account for the various provisions by assuming that the testator inserted them merely in order that his executor should have the charge and management of the estates during the time required for the discharge of the ordinary duties of an executor. They seem to be more extensive and permanent than would naturally be expected for such a limited purpose. But, on the other band, various considerations lead to the contrary inference. There is no express devise to him in trust; the devises to the testator’s sisters are absolute and unqualified in their terms; their ages are not given, but at any rate it is assumed that at present they are all of age and sui juris ; the will discloses no reason for the creation or permanent continuance of a trust in respect to their estates, unless for the purpose of benefiting the executor; there is no language necessarily implying that the executor was to perform duties or exercise powers which implied the vesting of a trust estate in him; he was not. to sell the property unless by the written request of the testator’s sisters; the other provisions were mostly in the nature of requests to the executor, and are susceptible of the construction that the testator was seeking to furnish assistance to his sisters in the care and management of the property in case they should need it: the final direction to collect rents and pay taxes may have been on the assumption that this should be done if his ássistance should be needed, and ■ not otherwise; and on the whole, and especially in view of the absolute character of the earlier provisions wherein the residue is given to the testator’s sisters without qualification, we do not find in the later provisions a clear intent to cut down the estates so devised by subjecting them to a trust.

Moreover, even assuming that a trust was created, it is plain that the trustee would take no larger estate than was necessary for the proper execution of the trust. Fay v. Taft, ubi supra. The whole beneficial interest in this portion of the estate being vested in the testator’s sisters, no other person has an interest to maintain or continue the trust, unless the trustee himself, and a decree for the termination of the trust might properly be entered.^* We have not been referred to any case where a trust has been continued merely for the purpose of continuing the compensation of the trustee, and we should be slow to do this unless such clearly was the intention of the founder of the trust. We find no such intention in the present case.

The result is, that, in the opinion of a majority of the court, the decree appealed from must be reversed, and the decree of the judge of probate affirmed. Decree accordingly.

* See Sears v. Choate, post, p. 395.