McCoy v. Inhabitants of Natick , 223 Mass. 322 ( 1916 )

Pierce, J.

Collins Morse by his last will devised and bequeathed to his sister, Louisa M. Rockwood, after certain bequests, the rest and residue of his estate with power to “sell and dispose of so much ... as will ensure her a comfortable living.” At her decease, he gave “the balance” undisposed of to the town of Natick “but in trust nevertheless the income of which is to be used for the preservation of the monument which my executor is hereby authorized to erect at my grave and .for the care and beautifying of my lot in the cemetery. . . . The town shall not expend a greater stun than four per cent per annum, deeming that as large an amount as the town ought to pay.” The validity and construction of the bequest to the town of Natick was considered by this court in Morse v. Natick, 176 Mass. 510. It was there held, that the gift to the town created under our statutes a good perpetual trust.

In reference to the provision in the will as to the sum to be expended, Morton, J., said: “The direction that not more than four per cent per annum shall be expended by the town refers, we think, to income to an amount not exceeding four per cent on the principal. The gift is, in the first instance, of the whole income, to be used for the purposes named, and it is hardly to be supposed, we think, that the testator could have intended, by the direction referred to, to limit the expenditure to the trifling amount of four per cent of it. There is nothing to show that the income has been or is, or probably will be, more than that, or that there has been or will be any accumulation. Indeed, it may be fairly assumed that it is not probable that the town will realize more than four per cent from the trust fund.”

So far as the record shows, events have justified the prediction that the percentage of income received would not exceed four per cent of the principal. To be sure, there appears to be in possession of the town of Natick on deposit in the Natick Savings Bank the sum of $677.90, and interest thereon from November 1, 1914, at four and one half per cent. Assuming that this sum represents unexpended income, no facts are reported from which it can be determined when, or how, or from what source it was amassed, nor whether, during the time of its collection, the direction of the trust as to the amount to be expended by the. trustee has been fully obeyed.

The will furnishes in explicit terms a guiding and authoritative instruction to the trustee. It contains neither statement nor inference that the measure of the trustee’s duty is adoption of or conformity to such a standard of taste and sentiment as shall from time to time be presented to view in the care, maintenance and beautification of other burial lots in this particular cemetery.

Should the average net income in a series of years exceed four per cent upon the principal, or should it prove impossible reasonably to expend the income in the manner provided by the trust without waste, a question might fairly be raised as to the disposition of any surplus, within principles recognized in Sears v. Hardy, 120 Mass. 524, Teele v. Bishop of Derry, 168 Mass. 341.

No such question is now before us and a decree should be entered dismissing the bill with costs.

Decree accordingly.