Bremer v. Hadley

• Decision Date: 11 July 1907
• Citation: 196 Mass. 217,81 N.E. 961
• Parties: BREMER v. HADLEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 217

81 N.E. 961

BREMER v. HADLEY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

July 11, 1907

COUNSEL

Frank W. Hackett, Chauncey Hackett, and Clifton L. Bremer, for complainant.

Eugene J. Hadley, for defendants.

OPINION

HAMMOND J.

One of the questions is whether Berry as trustee under the will of Francis W. Sayles had power to sell and assign these mortgages. The decision of this question rests of course upon the terms of the will as modified by any action of the probate court. The will, after making several bequests provided that the residue of the estate should go to certain persons 'to the uses, and upon and for the trusts intents, and purposes, and with and subject to the powers and provisions hereinafter mentioned and expressed of or concerning the same; that is to say: Upon trust that they the said trustees, do and shall stand and be possessed of one-third part of said rent and residue in trust for the use and benefit of my wife, the said Jane, and that they do and shall pay all the net income and produce of the same to the said Jane, or otherwise authorize and empower her to receive and take the said income and produce for her own use during her life; the said principal sum to go at her decease to such person or persons at such time or times and for such estates therein as the said Jane shall, by her last will and testament, * * * direct and appoint; and on default of such direction, the said principal sum to go to the legal heirs of the said Jane.' The provisions as to the remaining two-thirds of the trust fund, so far as material to the subject of the present inquiry, are substantially the same.

It will be noticed that there is no power expressly given to the trustees to sell any part of the trust property, real or personal, or to change investments. The trustees are empowered simply to 'stand possessed' of the trust fund as left by the testator, and to 'pay over the income and produce' to the beneficiaries until the time shall come for the termination of the trust and the distribution of the principal of the trust fund. This is not an express power to change investments during the life of the beneficiaries for life.

And we are of opinion that there is no implied power to sell any of the trust property until the time comes for the termination of the trust. This is not a case where a part of the trust fund consists of perishable personal property; nor where, as in the case of an executor or administrator, the duty may be to reduce the assets to cash for the payment of debts and legacies or for distribution among the heirs; nor where the trustee is instructed to keep the property safely invested. On the contrary, as stated above, the trustee is to stand possessed and to pay over...