Sanger v. Farnham

• Decision Date: 31 December 1914
• Citation: 220 Mass. 34,107 N.E. 359
• Parties: SANGER v. FARNHAM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

220 Mass. 34

107 N.E. 359

SANGER v. FARNHAM et al.

Supreme Judicial Court of Massachusetts, Middlesex.

December 31, 1914

COUNSEL

Stoughton Bell, of Boston, and Arthur F. Ray, of Woburn, for petitioner.

Gilbert A. A. Pevey, of Boston, for respondents.

OPINION

BRALEY J.

By the residuary clause the testator divided his remaining estate into two equal parts for the benefit of his son and grandson and directed that:

'As soon as practicable after my decease and such division shall have been made my trustees shall pay to my son Howard the sum of five thousand dollars in cash or its equivalent, the income of the remainder of his half shall be added to the principal as it accrues, and at the expiration of five years from the date of said payment of five thousand dollars all the principal and accretions thereto shall be paid to my son Howard and the trust as to him closed.'

It is manifest that, the earlier the division, the sooner the son and petitioner would receive the first payment, and the time from which the five years were to run when the remainder of the principal became payable would be accelerated. The question for decision is: When did it become practicable for the trustees to make distribution? A part of the residue consisted of real property and before a division could be made under the scheme of the will and the trust fund created it would have to be converted. The trustees accordingly are authorized to sell and to invest the proceeds in such manner as they shall deem best. The trustees also were the executors, and until the settlement of the estate it could not be finally determined how much personal property would fall into the trust. The petitioner who appears to have been in necessitous circumstances requested the trustees upon their appointment to make a division and pay to him the first five thousand dollars, and to raise the money by a mortgage on the real estate. It is to be inferred that this request was on the ground that the balance shown by the executor's first account was only a trifie more than half of the amount required. The refusal of the trustees was justified. The power of conversion being 'out and out' they could sell, but had no authority to mortgage. Kent v. Morrison, 153 Mass. 137, 139, 26 N.E. 427 10 L. R. A. 756, 25 Am. St. Rep. 616. It moreover was only when the estate had been closed, and the balance of the personal property transferred to themselves...