Phelps v. Phelps

Gardner, J.

Although the testator appointed no trustees, it is clear that, by fair implication from the terms of the will, the property is to be kept together for a time. The executors therefore became trustees of both the real and personal estate during the time it was necessary for them under the terms of the will to act in that capacity. The real and personal estate would vest in the executors upon the same trusts. Kingsbury v. Gould, 9 Met. 282 .

The defendant Henry W. Phelps, while admitting that the executors became trustees of the- real and personal estate for a certain period, contends that, upon the termination of the general trusts by the payment of the legacies, or the refusal to pay them, he is by the terms of the will vested with the legal title in fee simple to an undivided one half part of all the real estate of the testator, and to an absolute interest in one half of the personal estate.

It is not clear by the power of disposal in the latter part of the clause relating to Henry W., whether it is income or principal which the testator refers to. ■ But comparing this power with that given to John in the clause, “one half of this half of my estate is to be disposed of at the decease of my son John,” we think that the true meaning of the testator was to give his *574 son Henry W. Phelps at his decease power to dispose, by will or otherwise, of one half of the remainder of the testator’s estate. The presumption is, that the testator did not intend to leave any part of his estate undisposed of. Weston v. Weston, 125 Mass. 268 . His intention to dispose of all his property is apparent from the language of the will, by the words which he has used. If he has omitted to express his intention, this omission cannot be supplied by conjecture. “ But if a reading of the whole will produces a conviction that the testator must necessarily have intended an interest to be given which is not bequeathed by express and formal words, the court must supply the defect by implication, and so mould the language of the testator as to carry into effect, as far as possible, the intention which it is of opinion that he has on the whole will sufficiently declared.” Metcalf v. Framingham Parish, 128 Mass. 370, 374 .

The bequest to Henry of the income of one half of the remainder is coupled with a trust for the support of his family. To give property to one person for the support of another, is sufficient to show that a trust is intended in favor of the latter. Loring v. Loring, 100 Mass. 340 . Andrews v. Cape Ann Bank, 3 Allen, 313 . Whiting v. Whiting, 4 Gray, 236 . The word “ family ” includes the sons and daughters, so long as they may live together and form a portion of the same household. Bradlee v. Andrews, 137 Mass. 50 . The purpose of this bequest of the income is “for the support of himself and family.” He has a life interest in the income, coupled with a trust for the support of his family. He has no absolute estate in the half remainder. Nor is the bequest of the income clothed with a trust in favor of his children, or of “ his legal heirs.” At his decease the estate is to be disposed of to his legal heirs as he may wish, by will or otherwise. The disposition of the estate is limited to his legal heirs. But this power to dispose of the estate cannot be exercised until his decease.

The provision made for John is in many respects similar to that made for Henry. It is apparent that the testator intended that the executors should hold the property up to the time of John’s death, and that then they should determine what disposition should be made of the one half which in a certain event they were to deliver over to Willis 2d. This was a question for *575 “them to determine, and, to enable them effectually to carry out the intention of the testator, it was "necessary that they should have the control and possession of the property. The income of one half “ is to be given ” to John W., for the support of himself and his son Willis 2d. The income which goes into John’s hands is charged with a trust, for the benefit of his son, in the same way, and to the same extent, that the income given to Henry is charged with a trust to support his family. In neither case is the income of the estate received by the sons, to be held absolutely by them to be disbursed at their pleasure. They each take the income of one half of the estate in trust, so that the family, the wife and children of one, and the son of the other, can enforce its due appropriation in part for their benefit, in a court of equity. Otherwise, it would be in the power of either son to defeat the purpose of the testator, by depriving the family of the one, and the son of the other, of the support which is expressly provided for by the will. Chase v. Chase, 2 Allen, 101 . Proctor v. Proctor, 141 Mass. 165 . Andrews v. Cape Ann Bank, ubi supra.

Inasmuch as the income when received by Henry and John is charged with a certain trust for the support of the family of Henry and for the support of the son of John, their respective interests are only equitable. To give them the principal might defeat the intention of the testator in his provision for their respective heirs, to whom the principal sum is to go at their decease. Saunderson v. Stearns, 6 Mass. 37 . Field v. Hitchcock, 17 Pick. 182 . Barrus v. Kirkland, 8 Gray, 512 . Hatfield v. Sohier, 114 Mass. 48 . Simonds v. Simonds, 121 Mass. 191 . Smith v. Snow, 123 Mass. 323 . Sanford v. Sanford, 135 Mass. 314 .

An examination of the provisions of the will shows the purpose and intention of the testator. The provision that the grandsons shall have a college education if they desire, and that the executors at such times as they shall think advisable shall pay them six hundred dollars each annually for four years, if they remain in college so long, indicates that the executors should hold the remainder of the estate in trust. The amount required by the executors for this purpose is uncertain, and will depend upon the determination of the grandsons. Power is *576 given the executors to sell and dispose of all the testator’s estate in this State, and to invest the proceeds. They are not limited as to time in making such sale and investment, and it appears to have been the intention of the testator that they were to have such power as occasion might require in carrying out the purposes of the testator, and that for these purposes the executors should hold the real estate in trust. The clause in the will, that the support of the son of John should be as the father shall elect, indicates that the funds to supply that support should come from the executors; that, although they should supply the funds, they should not dictate the manner of support which the father should furnish the son. There are other indications in the will pointing to the same conclusion. The duty of the court, in giving a construction to the will, is to ascertain the real intent and meaning of the testator. Cook v. Holmes, 11 Mass. 528 . Metcalf v. Framingham Parish, ubi supra. From reading the whole will and examining its provisions, we are led to the conclusion, that it was the intention of the testator that the executors should be vested with the title to the real estate, and should hold the personal property on the following trusts:

1st. To invest the personal property of the testator as a general fund, and hold the same with the real estate, out of which the legacies, donations, gifts, and provisions shall be paid as they severally become due and payable.

2d. To pay one half of the income of the general fund and of the real estate remaining after the payment of the legacies, donations, gifts, and provisions, as they severally become due and payable, to Henry W. Phelps, during his life, for the support of himself and family, and to.pay the other half of said income to John W. Phelps, during his life, for the support of himself and his son Willis Phelps, 2d, and, at the decease of Henry W. Phelps and John W. Phelps respectively, to dispose of the remainder of the estate in accordance with the provisions of the will.

By the terms of the will, the “donations, gifts, and provisions” are not to be deducted and set apart as a separate fund, but are to be deducted as they become due and payable. They remain, subject to payment, a part of the general fund, the income of which is to be paid, one half to Henry W. Phelps, and one half to John W. Phelps. When any of the legacies are paid, the *577 amount of the general fund Is reduced, to the extent of payment, and the amount of the income is also diminished.

The legacies cannot earn interest which will enure to the benefit of the legatees, before the time specified in the will for the payment of the legacies, or of their income. The testator has provided that, under certain conditions, the income of the legacies of three thousand dollars to his grandsons Willis Phelps and Henry W. Phelps, Jr., shall be paid to them annually after they “ shall be twenty-two years of age.” He has also provided that the legacies to his granddaughters shall be paid to them when they arrive at a certain age, “ or if any of them should be married before they arrive at that age they are to receive the same when married.” It was apparently the intention of the testator that income should not be added to the legacies and gifts until they were due and payable. The general rule of law, that legacies payable at a certain time do not bear interest until that time arrives, governs in this case. Merritt v. Richardson, 14 Allen, 239 . Kent v. Dunham, 106 Mass. 686 .

Upon a bill of this character, where the executors ask for the construction of the will, an attaching creditor is not a necessary party. In this suit in equity we cannot determine the rights of creditors of John W. Phelps to any part of the income payable to him by the terms of the will.

Decree accordingly.