Biles v. Webb

ALLEN, J.

A testamentary trustee who is also a beneficiary under the testamentary trust and is charged under the will with the duty of paying off mortgaes on real estate at the earliest possible date and distributing the estate to the beneficiaries cannot by failing to pay off such mortgages when there is sufficient income for such purpose and thus postponing the distribution, defeat the right of such beneficiaries to their proportionate share of such estate. In such case equity regards that as done which under the terms of the will ought to have been done.

(Marshall, CJ., Day, Kinkade, Robinson; Jones and Matthias, JJ., concur.)