Kendall v. Gleason , 9 L.R.A. 509 ( 1890 )

Knowlton, J.

By the seventh clause of the will of Benja- . min W. Gleason, the trustees, to whom all his real estate was devised, were to permit his three sons, Charles W., Stillman A., and Alfred D., to occupy and improve his manufacturing property, machinery, and water power, for their joint benefit, so long as they might desire, upon certain conditions therein stated, one of which was that they should be subject to no charge for rent. The last part of the clause is as follows: “ It is my request that my said sons shall occupy and improve the factory property and real estate of which I may die seised and possessed (excepting the homestead) jointly so long as they agree, remain steady and respectable men, and can make the business profitable; when they cannot do so, then I direct my said trustees to sell and convey in fee simple the whole of my said factory property and real estate, and to safely invest the proceeds of such sale, and to pay over to each son, as they shall respectively arrive at the age of fifty years, one third of said trust fund with its accumulations so remaining in their hands. If either of my said sons shall die before arriving at the age of fifty years, I direct his share to be paid by my said trustees to his legal heirs.”

It was evidently the desire of the testator that his three sons should jointly succeed him in carrying on the business of manufacturing, and he offered them an inducement to do so by providing that they might use the property without charge for rent so long as they should agree in occupying it together, and should make the business profitable. It is equally clear that, upon their failure to agree, or to carry on the business profitably, it became the duty of the trustees to sell the estate, and invest the proceeds, and pay one third to each when he should arrive at the age of fifty years, unless on account of his death his share had previously become payable to his heirs. In this same clause there is a preceding provision allowing either of the three sons of the testator to express in writing to the trustees a desire that the property should be sold, and requiring in such a case that it should be appraised by three discreet men, and sold by the trustees at the appraised value to either two of the sons who should wish to purchase it at that price, and if no two of them should wish to take it in that way, requiring the trustees to sell it either at public auction, or private sale, as they should think best.

Under this provision, at the request in writing of one of the cestuis que trust, the property was sold to the other two; and the principal question in the case is, whether the trust was thereby terminated, or the property merely changed in form, and made subject to investment by the trustees until the sons should respectively die or arrive at the age of fifty years.

There can be no doubt that the proceeds of the sale in the present case must be treated in the same way as if the property had been disposed of at public auction or private sale, after an appraisal under this provision and a failure of any two of the sons to take it at the appraised value. A sale of the kind last mentioned does not differ in character from a sale made under the last part of the clause without a request in writing. It is necessarily the result of a failure of the three sons to agree to carry on the business jointly in the manner contemplated. So long as they agree, there can be no request, and if they fail to agree, the last part of the clause is applicable. The special provision for a sale, which gives any two of the sons an opportunity to have the price fixed by a previous appraisal, is within the general language of the last part of the clause, both in regard to the causes which produce the sale and in the fact that the trustees “ sell and convey in fee simple,” as required by that language.

Unless the proceeds are to be disposed of under this clause, the will makes no provision in regard to them, and they are left to fall into the residue. But it is to be presumed that the testator intended to express his purpose fully in reference to this part of his property. The language which we have quoted indicates his intention as to the proceeds of the property after a sale, and naturally covers the case at bar.

To hold that a sale, after a request in writing, would terminate the trust, would render futile the testator’s provisions in regard to this part of his estate. He has said that, upon a failure of his three sons to agree in carrying on the business, the property shall be sold, and the proceeds held by the trustees until the beneficiaries respectively arrive at the age of fifty years. Upon the construction contended for by Charles W. Gleason and Alfred D. Gleason, either of the three sons, by a simple request in writing, might terminate the trust, and require that the trust property be turned into the residue of the estate, as soon as the trustees had entered upon the performance of their duties. It cannot be supposed that the testator intended to leave the existence of a trust for which he had made elaborate provisions to depend on the unanimity of his residuary legatees in desiring the continuance of it. In the opinion of a majority of the court, the trust continued after the sale of the real estate to Charles W. Gleason and Alfred D. Gleason, and as to their share of the proceeds it still continues.

On the death of Stillman A. Gleason the trust terminated as to his share, which then immediately became payable “ to his legal heirs.” The will contemplated a change of the real estate to personal property in the hands of the trustees, and that it should go to the heirs in the form of personal property. The words “legal heirs” must, therefore, be construed to mean those who would take personal property under the statute of distributions. Sweet v. Dutton, 109 Mass. 589. White v. Stanfield, 146 Mass. 424. One third of the fund held by the trustees should be paid to the heirs of Stillman A. Gleason, in the proportions of one third to his widow, Mary E. Gleason, and two thirds to his minor son, Benjamin W. Gleason, whose share will be held by his guardian, Albert L. Jewell. Decree accordingly.