Ogden v. Allen

• Decision Date: 15 January 1917
• Citation: 114 N.E. 862,225 Mass. 595
• Parties: OGDEN v. ALLEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 595

114 N.E. 862

OGDEN

v.ALLEN.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 15, 1917.

Case Reserved from Supreme Judicial Court, Suffolk County.

From a decree of the probate court allowing the second and third accounts of Horace G. Allen, surviving trustee under the will of James N. Thompson, denying the apportionment of the sum realized from the sale of unproductive real estate between principal and income, as belonging to Helen A. Thompson, his testatrix, Hugh W. Ogden, executor, appeals. Case reserved by a single Justice appeals. Case reserved by a single Justice court. Decree affirmed.

Whipple, Sears & Ogden, of Boston (R. E. Tibbetts, of Boston, of counsel), for appellant.

Horace G. Allen, of Boston, pro se.

CROSBY, J.

The testator, James N. Thompson, deceased February 12, 1909, leaving a widow, Helen A. Thompson, who, with the respondent, was appointed an executor and trustee under his will. The respondent is the surviving trustee. The widow deceased January 30, 1914, and the petitioner is the executor of her will.

By the terms of her husband's will the widow was given ‘from the net income of said trust property such sum or sums as she may in writing request of said trustees during her life, not exceeding the sum of four thousand (4000) dollars in any one year.’ She did not waive the provisions of the will, and in writing requested the executors and trustees to pay her $4,000 a year during her life. The estate consisted in part of parcels of vacant and unproductive land, including an undivided one half interest in a lot on Commonwealth avenue in Boston, which was subject to a mortgage of $10,000.

The agreed statement of facts recites that:

‘Various parcels of unproductive real estate were sold prior to the death of Helen A. Thompson and the amounts received therefrom were divided between principal and income as appears by the executor's and trustee's accounts filed, and the income paid to Helen A. Thompson.’

The lot of land on Commonwealth avenue above referred to was sold by the surviving trustee after the death of the widow; the executor of her estate contends that the expense of maintaining this lot since the date of the testator's death, including interest on the mortgage, taxes, and brokers' commissions on the sale, should be charged to principal, and should not be deducted from income, and that an amount equivalent to all payments from income in the way of expenses in connection with the maintenance of the property since the death of the testator should be deducted from the proceeds of the sale and repaid to income, and the balance apportioned between principal and income; and that the executor of the estate of the widow is entitled to such portion of the amount so repaid to income, and to such portion of the remaining proceeds of the sale added to income by apportionment, as properly belonged...