Allen v. Allen

De Courcy, J.

These are appeals from two decrees of the Probate Court, one entered on a petition for instructions under the will of William H. Allen, late of Arlington, deceased, and the other on an application for appointment of trustees under said will. William H. Allen died December 12, 1910. His sons, Abbot Allen, William H. Allen and Herbert F. Allen, duly qualified as executors on September 15, 1911, and since have continued to act as such. From the report of the single justice it appears that it now is necessary to pay or renew notes aggregating about $60,000, secured by mortgages on the real estate; that it is expedient that certain property in which the testator had an interest should be sold; and that there is need of extensive repairs and improvements on the greenhouses and other buildings.

Considering first the petition for instructions: The objections assigned by the appellant as his reasons of appeal relate mainly to the seventh and eighth paragraphs of the will. The three sons were named as executors. In addition to the title in the personal property and the powers ordinarily given by law to executors, the will gives special power and authority to these three during the existence of the ten year trust period hereinafter mentioned. Among other things, it is provided by the eighth paragraph that a majority of them may sell any or all of the residue, and may place mortgages on the property in substitution of existing ones; and that the proceeds of such sales may be used to pay off incumbrances on the property or may be invested by them. The instructions of the Probate Court as to the powers and duties of the executors plainly were correct. And the judge rightly declined to instruct them at this time as to the disposition to be made of any balance that may be left in their hands, as executors, after the ordinary settlement of the estate. If they should have such balance when their accounts are allowed, and any question should arise in connection with its transfer, application then may be made to the court for instructions thereon. Muldoon v. Muldoon, 133 Mass. 111. Hall v. Cogswell, 183 Mass. 521.

Under the seventh paragraph of the will, the testator gave to his sons Abbot Allen and Herbert F. Allen the management and control of the residue of his estate for the period of ten years, or until the death of the survivor within that period. The will fully sets forth their powers and duties with reference to the management of the residuary estate, and the application of the income. As all parties in interest agree, a trust is thereby created, even though the word “trust” is not used. Sawyer v. Cook, 188 Mass. 163. The main contention of the appellant is that he should be deemed a co-trustee by construing together the seventh and eighth paragraphs of the will and reading his name into the seventh; but this is untenable. The seventh paragraph deals specifically with the powers of the executors. In the eighth the testator provides that his sons Abbot and Herbert F. shall carry on the farming business upon his estate, and he defines their duties. An annual compensation is expressly provided for them in the sum of $2,500 and $2,000 respectively, and the use, free of rent, of the houses they occupy, while only an allowance of $12 a week is made in favor of the appellant William H. Allen. He has a voice in the approval of necessary improvements made from the income, but only as one of the three executors. Even the two tenths share of the residue which is devised to him at the expiration of the trust period is to be held by his brothers in trust for his benefit, as set forth in the ninth paragraph of the will.

Accordingly it was proper that Abbot Allen and Herbert Allen should be appointed by the Probate Court as trustees under the seventh paragraph. As all the parties were represented before the court on the petition for instructions and the appointment of trustees necessarily followed from the decree on that petition, no further notice of the petition for their appointment as trustees was necessary or customary. It may be added that no power of sale is given to the trustees; and that the fee is not devised to them, nor to the executors under paragraph eight, but is vested in the children in accordance with the provisions of paragraph seven, and, as to the two tenths share of William H., with those of paragraph nine. In short, the decree of the Probate Court on each petition was correct; and in each case the entry must be

Decree affirmed.