Bridge v. Bridge , 146 Mass. 373 ( 1888 )

Holmes, J.

This is an appeal by the widow of Abel E. Bridge from a decree of the Probate Court allowing the accounts of her husband’s executor.

1. The first question arises under the following clause of the will: “ I give and bequeath to my wife Philihda four hundred dollars a year during her natural life if the income of my estate not herein bequeathed to her or to the payment of .said debts and funeral expenses shall amount to that sum.” The testator also gives her the use of his house for life, or, if she should desire to live elsewhere, requests his executor to furnish her a suitable house. She has continued to live in his house, and the executor deducts from the gross income applicable to payment of the four hundred dollars the amount paid out for repairs, taxes, water rates, insurance, and interest on a mortgage on the house. This is plainly right; the gift is of four hundred dollars a year, if the net income amounts to that sum. The charges mentioned all fall on income, not on capital, unless the will directs otherwise. Watts v. Howard, 7 Met. 478,482. Parsons v. Winslow, 16 Mass. 361, 368. Sohier v. Eldredge, 103 Mass. 345, 354. Plympton v. Boston Dispensary, 106 Mass. 544, 547. We see nothing in this will to indicate that the usual rule is not to be applied. The case is not like Smith v. Fellows, 131 Mass. 20, where a gift of “ one thousand dollars per year during her lifetime, the same to be paid from the income of my property,” was held to be an absolute gift of the sum named, payable out of principal if necessary, and therefore payable out 6f gross income. The gift here is payable only from income, and the income available must be ascertained in the ordinary way.

2. The general expenses of administration should fall upon the corpus of the estate, as they are incurred for the benefit of the whole estate. See Sawyer v. Baldwin, 20 Pick. 378, 388; Brown v. Kelsey, 2 Cush. 243, 249. The decree of the Probate Court erred in charging them to income.

3. There is no doubt that, where an executor’s final account comes to this court by appeal, the compensation allowed him is subject to revision, as well as the other items. Blake v. Pegram, 109 Mass. 541. Pub. Sts. c. 144, § 7 ; c. 156, §§ 5, 6, 17. The master having declined to revise this matter, the report must be recommitted if the appellant desires, upon this single point. If it be true, which does not appear, that a commission is allowed the executor for collecting his own debt, the allowance is improper. But possibly, if such an allowance was made, it was considered in determining the other compensation allowed, and it may be thought proper to increase that by a corresponding amount, leaving the total compensation the same. There is nothing in the facts now appearing to indicate that the allowances for attending court and for counsel fees were improper. Pub. Sts. c. 144, § 7. Edwards v. Ela, 5 Allen, 87. Forward v. Forward, 6 Allen, 494. Blake v. Pegram, ubi supra. Turnbull v. Pomeroy, 140 Mass. 117, 118.

4. There is a stable in the rear of the house occupied by the testator, which was used by the testator in connection with the house. The executor has let it and the appellant claims the rent. The mode of use in the testator’s lifetime does not necessarily establish that the stable is included in the words “ house in which we now live.” 2 Wms. Saund. 401, n. 2. The connection between the house and stable is not set forth very clearly, nor does it appear very clearly whether the master excluded the allowance of the rent for the stable on the ground that, as matter of construction, the words could not include a stable, or on a finding that the stable was not so connected with the house as to pass with it. On the facts appearing, we cannot say that the master and judge of probate were wrong. It is unnecessary to consider whether in any case the widow would have had any other right than personally to occupy the stable if so minded.

Decree accordingly.