Upon the facts agreed, the property held by the trustees was not taxable in Fall River, nor could it have been legally assessed to the trustees in Freetown. Under the will of the testator, the entire beneficial interest in the personal property belonged to his heirs at law; the trustees were only to hold and invest the same, and the dividends, interest and profits which might accrue thereon for the term of twenty years, when the whole was to be divided and paid over to the heirs at law No portion of the income was required to be paid over to the *269grandchildren of the testator during the period aforesaid ; but the trustees were authorized, if in their discretion it was deemed necessary, to pay a small portion of the annual income from time to time to them, not to exceed in any one year the sum of one thousand dollars. Under this provision, it was competent for the trustees to withhold the entire income, and re-invest the whole of it for the future benefit of the heirs at law. Clearly, therefore, the property was placed in the hands of individuals as an accumulating fund for the future benefit of heirs, and comes within the express terms of Gen. Sts. c. 11, § 12, cl 6. By that clause, it was properly taxable only to the heirs at law of the testator in the place of their residence within this commonwealth, which, as the facts find, was in Freetown.
By the form in which the statement of facts is drawn up, the plaintiff is not entitled to recover in this action, notwithstanding the tax was illegally assessed to the trustees in Fall River. It is only in the event that the court should decide that the trustees were properly taxable in Freetown for the trust fund, that the plaintiff" was to recover judgment. But as the heirs at law, and not, the trustees, were the proper persons to be assessed there for the property, the entry must be
Judgment for the defendants.