Monks v. Monks

Massachusetts Supreme Judicial Court
Monks v. Monks, 89 Mass. 401 (Mass. 1863)
Merrick

Monks v. Monks

Opinion of the Court

Merrick, J.

The principal question arising upon the provisions in the will of the testator, concerning which the parties seek to obtain a determination of this court for the guidance and direction of the trustees in the performance of their duties, relates to the disposition which is to be made of the balance of personal property which shall remain in the hands of the executors upon the settlement of their final account. After first appointing R. J. Monks and O. Howes to be executors of and trustees under his will, the testator gives, devises and bequeaths to them all his estate, real and personal, of every sort and kind, in trust, and then adds, “ that said trustees shall convert my personal estate into money, and to manage and take care of my real estate ; repairing, leasing, letting, and, if necessary, rebuilding, and'receiving the income thereof, and to apply said income, together with the proceeds of my personal estate, in the first place, to payment of expenses in management and repairs thereof.” This is inartificially and certainly not very plainly-expressed ; but, considered in reference to the intention of the testator as manifested and disclosed in view of all parts of the will, the proper interpretation and meaning of these provisions cannot be mistaken.

That the balance of money derived from the sale and disposition of the personal property, which shall be in the hands of the executors after payment of debts and the expenses of administration and settlement of their final account, is to be received by the trustees, and by them to be held, controlled and managed until the ultimate distribution of the whole estate among the grandchildren of the testator, as a fund from which in the mean time income is to be derived for the benefit of the cestuis que trust, is manifest from the authority given to them to invest the *405proceeds of the personal property with the proceeds of the sale of lands at South Boston, either in United States or state securities, or city of Boston scrip, or in first class mortgages of real estate. The express authority thus given to the trustees to mingle and blend the proceeds of the real and personal estate together in a common investment shows in the clearest manner that both are to be held for the same length of time, and managed and disposed of under one and the same trust. Hence it is an unavoidable implication that the phrase “together with the proceeds of my personal estate,” as used by the testator in declaring the terms of the trust, in the language of the will above quoted, are to be construed as meaning the interest or income to be derived from the personal property duly invested. That this is the true interpretation of these words, in the connection in which they áre there used, is apparent from another part of the will. After providing how the expenses to be incurred in the management and repairs of the estate and the annuities given to his mother and sister shall be paid’, the testator adds: “And the remainder of the net income of my said estate I direct my trustees to pay yearly, one third part thereof to my wife during her life, and the other two thirds to all my children, equally to be divided.” He had first given and devised to his trustees all his estate, “ real and personal, of every sort and kind; ” and when he in the end provides for the disposition of all that shall remain of the net income of his “ said estate,” it is plain that he refers as well to the personal as to the real; and the remainder of which he so disposes is what is left after payment of the expenses and annuities previously charged upon the income.

Upon the settlement, therefore, by the executors of their final account of administration, they are thenceforward to hold the balance of the personal property in their hands in their capacity as trustees; and from the aggregate of the income derived from the whole estate, real and personal, they are to pay the expenses necessarily to be incurred in its care and management, including the compensation to be received by them for their services, and in the repairs made upon the real estate, which from time to time may be required. This is to continue until the death of *406the last surviving child of the testator, at which time the trustees are to make over and convey all of his estate in equal shares to his grandchildren.

In the codicil the testator directs that the income from the shares of the capital stock of the Broadway Bank, which he had given as an advancement to his sons Frank, George and Henry, shall be taken and considered to be a part of their distributive shares in the division of the income of his estate under the provisions in his will. But these shares, having been given to his sons, became at once their property, and of course may be disposed of by them at their pleasure. The charter of the bank also may expire, and the stock will then no longer exist. It is necessary, therefore, to determine what shall be considered by the trustees to be the income of those bank shares, which is to be treated in the distribution of the income of the estate as a part of the share or portion of it which is to go to those sons. This must be, in view of the absolute equality in the enjoyment of and benefits to be derived from his estate, which the testator manifestly intended to secure to all his children, interest, at the rate of six per cent, per annum on the market value of the bank shares at the time of his death. The amount of such interest must accordingly be added to the balance of income which remains after payment of expenses in the management and repairs of the estate, and the annuities given to the mother and sister of the testator; and the division of the income of the estate among the children is to be predicated upon the aggregate of both.

The costs of suit, including the necessary fees of counsel, are to be taxed and paid by the executors, and charged in their account as part of the expenses in the administration of the estate.

A decree in conformity to the conclusions above stated is accordingly to be made and entered of record.

Reference

Full Case Name
Richard J. Monks & another v. Delia S. Monks & others
Status
Published