Parker v. Cobe
| Decision Date | 03 March 1911 |
| Citation | 208 Mass. 260,94 N.E. 476 |
| Parties | PARKER et al. v. COBE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Frank K. Linscott (A. A. Folsom and H. M. Burton, of counsel), for petitioners.
William M. Noble and Herbert R. Morse, for respondent Cobe.
It is the settled law of England that a bequest of money to be used in the purchase of an annuity gives the legatee a right to the money and he can insist that the annuity shall not be bought. Yates v. Compton, 3 P. Wms. 308; Barnes v. Rowley, 3 Ves. 305; Bayley v. Bishop, 9 Ves. 6; Dawson v. Hearn, 1 Russ. & M. 606; Kerr v Middlesex Hospital, 2 De G., M. & G. 576; Ford v Batley, 17 Beav. 303; Stokes v. Cheek, 28 Beav 620; In re Mabbett, [1891] 1 Ch. 707; In re Robbins, [1907] 2 Ch. 8. For further cases, see 2 Am. & Eng. Encyc. of Law (2d Ed.) 399. In the United States there is a decision to the same effect by an inferior court ( Reid v. Brown, 54 Misc. 481, 106 N.Y.S. 27), and, so far as we know, no case to the contrary.
This rule has found its most frequent application in case of bequests to be laid out in the purchase of annuities. But it is a general rule applicable to a bequest to be laid out in the purchase of any object. See, for example, Barlow v. Grant, 1 Vern. 255; Nevill v. Nevill, 2 Vern. 431; Barton v. Cooke, 5 Ves. 461; Lonsdale v. Berchtoldt, 3 K. & J. 185.
The reasoning on which the rule is established is that the legatee can sell the particular object as soon as it is bought and the law will not require the performance of a nugatory act. Consequently it is of no consequence that the particular object is to be bought by the executor and not by the legatee. See for example Dawson v. Hearn, 1 R. & M. 606; Ford v. Batley, 17 Beav. 303; Stokes v. Cheek, 28 Beav. 620; In re Robbins, [1907] 2 Ch. 8; In re Brunning, [1907] 1 Ch. 276; Reid v. Brown, 54 Misc. 481, 106 N.Y.S. 27.
The case at bar is not a case where $75,000 was left upon the trust that the income of it should be paid to Ruth Cobe during her life, but it is a case where the $75,000 was to be laid out by trustees in the purchase of an annuity for Ruth Cobe during her life. For that reason it is not a case within the rule of Claflin v. Claflin, 149 Mass. 19, 20 N.E. 454, 3 L. R. A. 370, 14 Am. St. Rep. 393.
The $75,000 was to be laid out in the purchase of an annuity in the case at bar by trustees and not by executors. In our opinion that makes no difference. Where the only duty to be performed by a trustee is to buy a particular piece of property for the cestui que trust, which piece of property the cestui que trust can sell as soon as it is bought, the rule of a bequest for a particular object applies and the cestui que trust is entitled to the money. The purchase is as much a nugatory act in case of a trust as it is in case of a bequest, and the same rule governs both cases.
We are of opinion that interest should be paid on the $75,000 from the expiration of one year from the testator's death, under the usual rule, as to which see Thayer v. Paulding, 200 Mass. 98, 100, 85 N.E. 868, where the cases are collected, and Claflin v. Holmes, 202 Mass. 157, 88 N.E. 664. The bequest in the case at bar was a bequest of $75,000 to be laid out in the purchase of an annuity, not the bequest of such sum as would purchase an annuity of a specified annual amount, as was the case in In re Robbins, [1907] 2 Ch. 8, where it is held that the annuity ran from the death of the testator.
The question decided in the case at bar was a question...
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