Healey v. Toppan

Sargent, J.

The testator first gives and bequeaths to his wife, " all my property in possession and all and every contingent interest arising or growing out of any property now in my possession or in expectancy,” subject to the following conditions : First, that his wife should pay the sum of six hundred dollars per year to the testator’s two sisters, during their lives and the life of the survivor; and, second, that, after the death of his wife, one-half of all his property should be held in " trusteeship," (the trustees to be named in the will,) to be disposed of in the following manner:—His faim in Hampton is to be for the use of Christopher Grafton Toppan, during his life, then to his son, &o., and, in default of such son, to Hampton Academy, if then in existence and in active operation ; but if not, then to the Congregational Society in Hampton. "The remainder of my property being personal, with some real estate situated in the city of Portsmouth, the income arising therefrom shall be equally divided and paid to all my nephews and nieces, yearly, so long as they or any of them may live; and the last survivor of them shall be the receiver of all the property held by my trustees for their account.”

*259 There might at first be doubt whether the testator, after disposing of his farm, in speaking of the remainder of his property, did not mean all the rest of his property. But, taken in connection with what precedes and follows, it must be held to refer to the remainder of the half which he had provided should go into the hands of trustees for the benefit of his nephews and nieces.

In the third article in the will, the testator gives to his wife " all the furniture, fixtures, silver ware, jewelry, watches, clothing, apurtenances, carriages and horse, if any I own, in the city of Portsmouth, cows and oxen, live stock, and farming utensils, either at Hampton or Portsmouth, and any property on my place in Hampton, either in the house, barns, corn-house, wood-house, or sheds, or in any of the out-houses, considered as personal property,” for her sole use and benefit; and he provided that said property should not be taken into account as any part of the estate for which luis wife was to be in any way responsible; nor was it to be reckoned in ascertaining the amount of his property, unless it became necessary to do so that it should amount to such a sum that the annual income of it all might be eleven hundred dollars ($500 for his wife and $600 for his sisters.) In that event only it was to be included in ascertaining the whole amount ofhis property. When thus included,if all his property should be so small,that, after paying debts, the income of it all would not be over five hundred dollars, with her house rent, then she was not to pay anything to the testator’s sisters. But if the income of all his property should exceed five hundred dollars besides the house rent, and not be sufficient to pay the whole six hundred dollars to his sisters, then they were to be paid a proportional part of said sum.

But the estate proves to be of sufficient amount after paying all debts, so that this property, thus specifically given to the widow, does not need to be included in making up the amount of the estate, for which, or for the income of which, the widow is to be in any way or at any time responsible. For the same reason, the two thousand dollars, bequeathed to the Hampton Academy, in the fourth article in the will, and the one thousand dollars to the Portsmouth Atheneum, in the sixth article, both of which are given on condition that the estate shquld exceed a certain amount, became absolute bequests, and have been properly paid by the executors. The five hundred dollars given to Sarah P. T. Healey, in the seventh article in the will, was an unconditional bequest, and has also been properly paid by the executors. The inventory shows that there was live stock and produce, such as corn, potatoes, hay, oats, &c., to the amount of $578 ; farming utensils to the value of $75 ; household furniture at Portsmouth $3000, and at Hampton, $300 ; making in all $3953,00 — all of which is specifically given to the widow. All that the executors, as such, have to do with this property, is to have it inventoried, and deliver it over to Mrs. Toppan, taking her receipt therefor, and this will be the end of their responsibility for this property.

Now, since the amount of the testator’s property, without including the articles specifically bequeathed to his wife, is known largely to exceed the sum of $50,000, after paying all debts, let us see what is the *260 construction to be given to the will, and what are its substantial provisions, stated in the order in which such provisions are usually placed in instruments of this kind. Omitting the conditions dependent upon the amount of his property, and the will provides :

1. For the payment of debts.

2. For the payment of a legacy of five hundred dollars to Sarah P. T. Healey.

3. It gives certain specific articles of personal property to Mrs. Top-pan for her sole use and benefit.

4. It gives a legacy to Hampton Academy of two thousand dollars.

5. It gives a legacy of one thousand dollars to the Portsmouth Atheneum.

6. It gives to his wife all the rest, residue and remainder of all the testator’s property in possession, and all and every contingent interest arising or growing out of any property then in his possession or in expectancy, subject to two conditions which have already been stated.

In any view that can be taken of the will, the result is the same in regard to the bequest to the wife, she is residuary legatee of all his property that shall remain after the payment of debts and the legacy of five hundred dollars, and the gift to the wife of specific articles, in One event; and, in another, it is what should remain after deducting these, and, also, the legacy to Hampton Academy and to the Portsmouth Atheneum. And it is not a bequest of any particular property specifically, but of all his property in possession or in expectancy, or the residue of it all.

Now, it is a rule of long standing, and well established, in the English Court of chancery, that, where a testator makes a general gift of his estate or the residue of his estate generally to, or in trust for, any person for life, with remainder over, so much of the property as is of a perishable nature must be converted and invested in permanent securities for the benefit of the remainder-man, and the tenant for life shall have only the income arising therefrom. The same rule applies to articles qucc ipso tisu consumuntur, such as corn and other provisions, wines, fruits, live stock, and the like, when such articles, instead of being specifically bequeathed, are included, with other property, in such a general gift of all, or the residue of all the testator’s estate generally, to one for life, with remainder over.

But the rule is different where the bequest is of specific articles to one for life, with remainder over. There the tenant for life is entitled to the possession and use of the property; and, should the article be worn out, or damaged, or wholly destroyed, during the life estate, the remainder-man has no remedy. When, therefore, there is such a specific bequest of articles which perish in the using, such as corn, wine, &c., then the whole title and property 'is ordinarily held to rest in the tenant for life, as there could ordinarily be nothing remaining of the specific property for the person in remainder. Therefore, such a specific bequest of such articles as ipso usu consumuntur, to one for life, with remainder over, is treated as an absolute gift to the tenant for life. And still it might happen otherwise; because, if the tenant for life should suddenly die before *261 the provisions were consumed or the other property had perished in the using, such as remained would go to the remaindei’-man, and not to the heirs of the tenant for life.

This distinction between bequests of specific articles of property, and general bequests of all or of the residue of all the testator’s property generally, was not noticed in the earlier decisions. In fact, in the earlier English cases, the bequests were generally of specific articles, such as silver plate, sets of pearls, household furniture, or the like, where the question raised was whether the tenant for life should be compelled to give security to the remainder-man for the property at the close of his term; and after some conflict it was settled that no such security should be required; that an inventory of the property was all that could be demanded ; that the tenant for life was entitled to the possession and use during his life, and if the property depreciated in value there was no remedy to the remainder-man; and that, when such articles were specifically given as perished in the using, then, of necessity, the tenant for life had an absolute property, and was not accountable to the remainderman. Hyde v. Parratt, 1 P. Wms. 1; Upwell v. Halsey, 1 P. Wms. 651; Hastings v. Douglass, Cro. Car. 343; Wilkinson v. South, 7 Term. R. 553; Smith v. Clever, 2 Ver. 59; Clarges v. Albemarle, 2 Ver. 245; Slanning v. Style, 3 P. Wms. 334; Foley v. Burnell, 1 Brown’s Ch. 279; Randall v. Russell, 3 Meriv. 194; Leeke v. Bennett, 1 Atk. 471.

But, in Howe v. Earl of Dartmouth, 7 Ves. 137, it was settled as the rule, that, where a bequest oi personal property was not specific,but was a general gift of all such property, or of the residue of such property generally, to a person for life, with remainder over, and where such general bequest includes perishable property, the object of the testator can only be effected by converting such property into permanent annuities, and giving each person in succession the dividends of the fund. This rule has been recognized and adopted in Fearns v. Young, 9 Ves. 549; Dimes v. Scott, 4 Russ. 195; Bethune v. Kennedy, 1 Myl. & C. 114; Alcock v. Sloper, 2 Myl. & K. 699; Collins v. Collins, 2 Myl. & K. 703; Mills v. Mills, 7 Sim. 501; Pickering v. Pickering, 2 Beav. 31; S. C. 4 Myl. & C. 298; Litchfield v. Baker, 2 Beav. 481; Benn v. Dixon, 10 Sim. 636; Goodenough v. Tremamon do, 2 Beav. 512; Hunt v. Scott, 1 De G. & Sm. 219; Neville v. Fortescue, 16 Sim. 333; Pickup v. Atkinson, 4 Hare, 624; Cafe v. Bent, 5 Hare, 36; Vaughan v. Buck, 1 Ph. 75; Daniel v. Warren, 2 Y. & Coll. C. C. 290; Burton v. Mount, 2 De G. & Sm. 383; Johnson v. Johnson, 2 Coll. 441; Bowden v. Bowden, 17 Sim. 65; Litchfield v. Baker, 13 Beav. 447; Morgan v. Morgan, 14 Beav. 72; S. C. 7 Eng. Law & Eq. 216; Hill on Trustees, 386; 2 Leading Cases in Equity, (3d Am. Edition,) 514; Hood v. Chapham, 19 Beav. 90; Jeb. v. Tugwell, 20 Beav. 84; Blann v. Bell, 5 De G. & Sm. 658.

In Morgan v. Morgan supra, it is said that the rule, as laid down in Howe v. Earl of Dartmouth, is correct and will prevail, unless there can be gathered from the will some expression of intention,that the prop *262 erty is to be enjoyed in specie, and which it is incumbent on those contesting the application of the Earl, to point out; and that modern cases allow small indications of intention to prevent the application of the rule, but the mere absence of any direction to convert the property is insufficient.

In Cafe v. Bent supra, it is said that the general rule, as to the conversion of wasting property, does not proceed on the assumption that the testator intended his property to be sold, but upon this, that the testator has intended the enjoyment of perishable property by different persons in succession, and this the court can accomplish only by a sale. See also remarks of Lord Brougham in the House of Lords, to the same effect, in Pendergast v. Pendergast, 3 H. L. Cases, 195.

The distinction between a specific and a general or residuary bequest or gift of chattels, is not only thus established in England, but is fully recognized in the United States. Where there is a specific gift of articles, quce usu consumuntur, as hay, corn, wine, provisions, &c., for life, with remainder over, the remainder is ordinarily void, at least, where the tenant for life lives to consume it all, and the first legatee takes absolutely. But where such specific gift is of articles which are not consumed by use, but are only deteriorated, or wear out, such as furniture, plate, and farming utensils, the remainder is good; but the tenant for life is entitled to the possession and use of the articles, and is not required to give security, but only to file a schedule of them for the benefit of the remainder-man. 1 Story’s Eq. Juris, sec.. 604; Weeks v. Weeks, 5 N. H. 326 and cases. But the remainder-man .may have security ordered in such cases, where it is shown that there is real danger that the property will be wantonly wasted, or fraudulently secreted or removed. 2 Kent’s Com. 354; Homer v. Shelton, 2 Met. 194 ; Hudson v. Wadsworth, 8 Conn. 348 ; Langworthy v. Chadwick. 13 Conn. 42 .

The early cases in this country were cases of specific bequests, or the principles applicable to that class of cases were applied to them, without noticing the distinction, Gillespie v. Miller, 5 Johns. Ch. 21 ; Westcott v. Cady, 5 Johns. Ch. 334 ; De Witt v. Schoonmaker, 2 Johns. 243 ; Weeks v. Weeks, 5 N. H. 326. The general principle applicable to that class of cases is also stated in 2 Kent’s Com. 354, and the Chancellor then adds : " Where there is a general bequest of a residue for life, with remainder over, the practice now is to have the property sold and. converted into money by the executor and the proceeds safely invested, and the interest thereof paid to the legatee for life.” And he cites Howe v. Earl of Dartmouth.

This same distinction was soon made in New York, and the principle of Howe v. Earl of Dartmouth was introduced and distinctly adopted in the courts of equity in that State. Covenhoven v. Shuler, 2 Paige, 132 ; Williamson v. Williamson, 6 Paige, 298 ; De Peyster v. Clendennin, 8 Paige, 295 ; Cairns v. Chaubert, 9 Paige, 160 ; Spear v. Tinkham, 2 Barb. Ch. 211 . Also, in Pennsylvania, Kennard v. Kennard, 5 Watts, 108 ; Eeichelburger v. Barnetz, 17 S. & R. 293, So, in Tennessee, Henderson v. Vaulx, 10 Yerger, 30; *263 Woods v. Sullivan, 1 Swan, 507 . And also in Maryland, Evans v. Inglehart, 6 Gill & J. 171; Wootten v. Burch, 2 Md. Ch. 190 . And in Alabama, Harrison v. Foster, 9 Ala. 955 .

The same principle has been recognized in this State, though we are not aware that the question has ever arisen directly, or been decided before. In Marston v. Carter & Tr., 12 N. H. 164, which was a case of a specific bequest of certain household furniture, and the plaintiff was claiming to hold this furniture by virtue of the trustee process, upon the debts of the husband of the tenant for life, and it was contended, that, if the property itself could not be holden absolutely, yet the use of it could, and that the use, during the life of the tenant for life, should be sold, Parker, C. J. says : " If creditors could reach it (this furniture) in any way, it would seem to .be by proceedings in equity, resulting in the sale of the property itself, an investment of the fund for the benefit of those interested, and a payment of the income to the creditor during the existence of the life estate. Whether that can be done in the case of a specific bequest of the use of a chattel, we need not now • inquire. Where there is a general bequest of a residue for life, with remainder over, the practice is to have the property sold and the proceeds invested. Vide 2 Kent’s Com. 354 and notes.”

We think the general principle followed in Howe v. Earl of Dartmouth, and the subsequent English cases, should be felly adopted in this State, as it has been by the courts in this country generally, although the instances requiring its application are much fewer with us than in England. It has become well settled here, that, where there is a pecuniary or a residuary bequest for life, with a limitation over, the executor will be bound to protect the interests of those in remainder, by requiring security from the legatee for life, or by converting the fund into cash and investing it for the benefit of all who are entitled under the will. This general rule, which is designed simply to give effect to the intention of the testator, will, however, yield wholly or in part whenever he manifests an opposite or different intention, or when it cannot be applied without defeating the purposes of the bequest. Where money, or property meant to be converted into money, is bequeathed, there is no hardship in requiring security before payment or delivery to the legatee, because, if he is unable to give security, the object of the testator may be equally well attained by investing the fund and allowing him to receive the interest. But when books, furniture, or other specific chattels, are specifically bequeathed by will, the presumption is, that the testator intended that they should be used by the legatee in the form in which they were given; and, as they must be delivered to him in specie, in order to effectuate this intention, security will not be required, because requiring it would defeat the bequest in case the legatee were unable to give it. In such cases, only an inventory is required.

But it is said that the presumption of equity is so strongly against a course which necessarily interferes with the equalization of the bequest between the legatee for life and those in remainder, by compelling the latter to take the property subject to the deterioration which it has undergone by the lapse of time and by use, that, when specific chattels,-in *264 stead of being given specifically, form a part of a general residuary bequest for life, with limitations over, the object of the testator will be presumed to have been to give the first taker the mere interest on the fund, and the executor will be bound to convert the whole into cash and either invest it for the purposes of the will, or pay it over on receiving security for the principal as in case of a pecuniary legacy.

In Covenhoven v. Shuler, 2 Paige, 122 , after stating the rule applicable to a specific bequest of certain articles, the Court said: " But none of these principles in relation to specific bequests of particular articles, whether capable of a separate use for life or otherwise, are applicable to this case. Where there is a general bequest of a residue for life, with a remainder over, although it includes articles of both descriptions, as well as other property, the whole must be sold and converted into money by the executor, and the proceeds must be invested in permanent securities, and the interest or income only is to be paid to the legatee for life. This distinction is recognized by the Master of the Rolls in Randall v. Russell, 3 Mer. 193. He says, if such articles are included in a residuary bequest for life, then they are to be sold and the interest enjoyed by the tenant for life. This is also recognized by Roper and Preston as a settled principle of law in England. Prest. on Legacies, 96; Roper on Leg. 209. See also Howe v. Earl of Dartmouth, 7 Vesey, 137, and cases in notes.”

Let us, then, examine the will before us, with a view to learn the intentions of the testator. We are not so much to follow any particular words or phrases, as to gather from the whole the testator’s real intent. Thus we have already seen that the provisions of the will, by which the property is given to the widow in part for life, and in part in fee, is really a residuary bequest. At her decease, one-half the testator’s property goes to trustees; but should his sisters outlive his widow, their annuity is to be paid during their lives, and, of course, after the decease of the widow, it must be paid from her estate, which would be her half of the whole. One-half the property being given to her, subject to the payment of the annuity, is simply charging that annuity upon her half of the property, during the lives of the sisters, with remainder to herself in fee. It is so held in Howie v. Earl of Dartmouth, where the same words " subject to” are used.

We find a similar case in Slanning v. Style, 3 P. Williams. 334, where, the testator,in his will,having charged the residue of his personal estate with £40 per annum to his wife, to be paid quarterly, the executor was ordered to bring before the Master sufficient in bonds and securities to be set apart to secure this annuity. Plere the widow may die before the testator’s sisters,and should she spend her half of the propererty, which is possible, then the other half going to the trustees at her decease, the sister’s annuity would fail unless some security were given.

We think, that, in order to carry out and secure the performance of the testator’s wishes and intentions, the executors should set apart an amount of stock or bonds sufficient to meet this annuity from the income; and that thereupon the balance of one-half of the whole estate, after *265 deducting what is specifically given to the widow, be paid over to her by the executors ; all which half is to be taken from the personal property and the avails thereof, unless she choose the real estate in Portsmouth as a part of it. It is evident that the testator intended the farm in Hampton should go to the trustees as a part of their half, from the disposition which ho directs them to make of it. We find nothing in this will to indicate that the testator did not intend that the general rule should apply, that whatever property is of a perishable nature, so that the interest of the remainder-man in the same would not be equal by the year to that of the tenant for life, shall be disposed of and the amount invested in permanent funds or securities, and that the tenant for life receive the income thereof during her life.

There is nothing in the fact, that real and personal estate are bequeathed together at the same time, and that it is evident that the testator intended the real estate, or, at least, the Hampton farm, should remain unsold, and be enjoyed in specie. That is one of the- points decided in Howe v. Earl of Dartmouth, viz : That a bequest or devise of real estate for life, with remainder over, is always to be treated as a specific devise, of which the tenant for life is to have the use-, possession, and income during life; but that a bequest of personal property will not be held to be specific, merely from being combined with a devise of land.

But, in this case, the testator gives to his wife all his property in possession, and all and every contingent interest arising or growing out of any property now in his possession or in expectancy, subject, &c. Now, here is not only nothing to show that the bequest was intended to be specific, but the general form of it, giving all his property, &c., and the fact, that he aftewards selects out a portion which he enumerates, and gives to her specifically, shows that he did not consider the first bequest specific, or intend that it should be; also his specifying that all and every contingent interest in possession or in expectancy should be hers, shows that he did not expect or intend that these tilings were to be specificially enjoyed by her for life in the condition they were then in, but that these interests should be converted into something substantial and permanent, capable of furnishing income or interest as capital.

Applying the rule, then, in Howe v. Earl of Dartmouth to this case, it seems to us plain that the shipping should be converted into money, and the avails invested in permanent securities. These ships may last many years. Ordinarily, they earn money fast while they are prosperous, but are likely to be of short-continuance. The casualties to which they are exposed are so numerous andso great, that the chances are, that many, if not all, of them would perish during the life estate. Let the executors convert this property into permanent, interest-bearing securities.

As to the amount of profits realized from the shipping, being 817,-643.68 for about 18 months, or nearly §12,000 a year, on a capital of §29,750, at its appraised value, it is evident that if the tenant for life is to have that amount as income merely, she will fare infinitely better than those in remainder. She will be likely to get not only large income, but to wear out or use up the principal, during her life, and thus *266 get the whole .of the principal and interest herself, and leave nothing to those in remainder. The principle to govern in this regard is stated in Howe v. Earl of Dartmouth : " As in the one case that in which the tenant for life has too great an interest is melted for the benefit of the rest, in the other that of which, if it remained in specie, he might never receive anything, is brought in, and he has immediately the interest of its present worth.” So that, on the same principle, a personal annuity not to commence, in enjoyment, till the expiration of twenty years from the death of the testator, and even then payable on a contingency, this future interest, for the sake of the tenant for life, should be converted into a present interest in order to yield an immediate income to the tenant for life.

In Fearns v. Young, 9 Ves. 549, the testator bequeathed to his wife the interest or income of one-half of his property for life, with liberty to dispose of half of said half, and the other half of that half, at her decease, to his daughter, and the whole of the other half to his daughter. The testator had an interest in a partnership which had thirteen months to run after his decease, and” his share of the profits during that time amounted £2070, 13s, payable, one-half in one year and the other half in two years after the termination of the partnership : Held, that the wife was not entitled to one-half of this sum, as income, but that this amount was to be treated as capital, that the interest should be sold for its present worth, and the wife receive half the income of that fund as interest, which would make the interest of the tenant for life and the remainder-man equal by the year. "The rule,” said Lord Eldon, "as to personal estate is,that what is not specifically given and consists of an interest wearing out, or an interest at present saleable, but, in point of enjoyment, future, the whole is converted into money in a question between the tenant for life and the remainder-man.” Each thus shares equally in the interest. Cairns v. Chaubert, 9 Paige, 160 , is also a strong case in point.

All the profits or income of the shipping since the testator’s decease, together with all the avails of the shipping when sold, are to be invested as capital, after paying the wife a proper amount of interest upon the clear principal during the process of administration. Also the advance in the Columbus, Piqua and Indiana E. E. bonds was properly accounted for as principal by both the executors. Mrs. Toppan cannot take the shipping or any other property at the appraisal and account for it at that sum, as tenant for life of the property. The executors might have done this in ordinary cases, but they have not done it in this case. Neither of the accounts as rendered attempts or claim this. This case does not stand any differently from what it would if the executors were indifferent or disinterested persons. They will settle the estate as though neither of them had any interest in the avails of the property, and pay over to the widow as directed.

The half that is to go to the trustees, at her death, may be held by the executors in trust to be safely invested in permanent interest-bearing securities, for the benefit of the estate; the income to be paid to her, and the stock at her decease to go to the trustees. Where moneys are re *267 ceived as the proceeds of what are termed wasting securities, such as leasehold estates which in progress of time will expire, or perish, or become of greatly diminished value, if the funds are held on a trust by which the income is to be paid for life to certain persons, and, on their decease,the remainder is given to other persons, it will be the duty of the trustees to add such dividends or moneys to the principal fund, so as to preserve it unimpaired for those entitled in remainder. Balch v. Hallet, 10 Gray, 402 , and cases cited; Kinmonth v. Brigham, 5 Allen, 271 .

The question arises as to the amount which the tenant for life is to receive as interest or income while the estate is in progress of settlement; for, during this period, the income and dividends are to be received by the executors and charged to them in their account; and when they settle with the tenant for life, some rule must be adopted as to the amount which she is to receive upon all the personal property found in the executor’s hands. Now, some of this property may have paid four, some live, some six, and some eight per cent., and some, like the shipping, may have made forty per cent., but much of that amount at the expense of a large depreciation in the capital. All this capital and income is to be charged to the executors, or rather they are - to be charged with all this income and with the amount the shipping sells for, and for all the other property, and upon this whole sum, as capital, the tenant for life should receive such an income as will make it worth the same to her annually that it will be worth to the remainder-man.

We find the English decisions are not uniform on this point; some holding that the tenant for life is entitled to nothing till the expiration of a year from the time of the testator’s death, Stott v. Hollingworth, 3 Mad. 161; others, that such tenant for life during said year will take the income of such parts of the estate as are properly invested at the testator’s death, or may become so invested during that year, La Terrier v. Bulwer, 2 Sim. 18; others still, that the tenant for life is entitled to the income of the property in its existing state during the first year from the testator’s death, Angerstien v. Martin, Turner & Russell, 232, and Douglass v. Congreve, 1 Keen, 410. But the late cases settle, that the tenant for life is entitled to the amount of the dividends on so much three per cent, stock as would have been produced by the conversion of the property at the end of that year. Dimes v. Scott, 4 Russ. 209; Taylor v. Clarke, 1 Hare, 161.

But in Williamson v. Williamson, 6 Paige, 298, 304 , Chancellor Walworth, after examining the English cases at some length, says : " The result of the English cases appears to be, and I have not been able to find any in this country establishing a different principle, that, in the bequest of a life estate in a residuary fund, and where no time is prescribed in the will for the commencement of the interest or the enjoyment of the use or income of such residue, the legatee for life is entitled to the interest or income of the clear residue, as afterwards ascertained, to be computed from the time of the death of the testator.”

And in that case it was held that the executors should pay the tenant for life five per cent, upon the clear residue, after deducting debts, leg *268 acies and expenses, from the death of the testator. We think the same rule may be applied in this case, with justice to all concerned. The result is, that the executors will proceed to dispose of the shipping to the best advantage they can, will charge themselves with all the income or earnings of the same, and all the avails thereof, also with all the money received on all bonds as principal, and with all interest, income or dividends from and upon all stocks, bonds and securities, and money received, and with all the stocks which they find properly invested, — and, if any are not so, they must dispose of any such, and account for the amount received, — must charge themselves with the amount of real estate and of money collected on notes and accounts, with the cash on hand and rents of real estate, in fact, with everything they receive from the estate.

They will credit themselves with paid funeral charges, all debts of the deceased with interest as paid, paid for insurance, for repairs of shipping, taxes, all legacies, annuities and expenses of administration, and any other moneys, properly paid out, and they are to deliver to Mrs. Toppan all the property specifically bequeathed to her, and discharge themselves from liability for it by her receipt for the same. All this, deducted from the whole amount received by them, will leave 'the whole balance of principal and interest or income thereon up to time of settlement. From this balance deduct five per cent, per annum upon the clear principal thus found in their hands to be computed from the death of the testator, and when that amount is deducted from the whole balance in them hands it will leave the net amount for distribution.

Of this amount one-half is to be taken, and, after setting aside and safely investing enough of the same to produce a yearly income of six hundred dollars for the testator’s sisters during their lives, the balance is to be paid over to Mrs. Toppan. The amount thus set aside to produce the annuity of six hundred dollars, will belong to Mrs. Toppan at the decease of the testator’s sisters, or if they should survive Mrs. Toppan, then at their decease it will go to her legal representatives.

The other half, including the Hampton farm, is to be held by the executors in trust, to see that said farm is appropriated as the will directs ; and to see that all of said half, except the farm, is safely invested, and the income paid annually to Mrs. Toppan during her life; and, at her decease, to deliver the same to the trustees appointed in the will.

To ascertain the clear principal, find the sum which, put at interest at five per cent, during the time occupied in settling the estate, will produce the balance in the executor’s hands, upon settlement. It is simply having the time, rate per cent, and amount given to find the principal.

Decree of the Probate Court reversed.