Joshua Nash et ux. versus Pliny Cutler et al., 19 Pick. 67

Shaw C. J. This cause, having been referred to a master, who has made his report, now comes before the Court fiar further directions, in two or three particulars. It has heretofore been decided, that the annuities were chargeable, one half on the real, and one half on the personal estate. [Emerson v. Cutler, 14 Pick. 108.] At first, it is probable, this question was immaterial, because both kinds of estate thus charged, went in equal proportions to the same persons, viz. to the five children.

But by subsequent events, other persons had acquired rights, in different proportions, and it had become necessary to settle this question. Now another question arises, viz. whether this charge extends to all the estate given by the testator to his five children, or whether the one third given to the wife for life, with remainder to the children, is first to be deducted. This depends upon the construction of the will.

The testator gives to his wife the use and improvement of one third of his real and personal estate, for her natural life ; then he gives and devises the same, at her decease, to his five children, to hold to them, their heirs and assigns. He then gives the rest and residue of his real and personal estate to his five children enumerated, charged with the payment of these annuities. The Court are of opinion, that to form the residue thus charged, the third thus previously given, absolutely and without any reservation, is first to be deducted.

Of course, the one third is to be paid out and distributed to the legatees, free from this charge, and the remaining two thirds constitute the portion charged with the payment of the annuities. 2. The next question is, whether the whole balance in the executor’s hands is to be paid over to the legatees, leaving the annuitants to seek the payment of their annuities from the legatees or the purchasers of the real estate. The Court are clearly of opinion, that it is not. The will expressly directs that the annuities shall be paid by the executor.

The will charges a large amount of estate as a security for this payment, end directs that it shall be paid over and distributed to the legatees only so far as it can be done consistently with this lien. The effect of these directions, taken together, is, that a sufficient portion of the real and personal estate shall remain liable to the disposal of the executor to meet this charge ; which is effectually creating a trust. Where a will directs acts to be done, which necessarily require the intervention of a trustee to hold the property, the executor is a trustee, by necessary implication. Saunderson v.

Stearns, 6 Mass. R. 37; Hall, Judge, v. Cushing, 9 Pick. 395; Dorr v. Wainwright, 13 Pick. 328. But in the present case, it is hardly necessary to resort to this implication, because the will authorizes and directs the executor to reserve enough of the rents and income of the prop erty, and from that source to pay the annuities. This is equivalent to a direction that he shall hold the capital under his control, from which this income is to arise. 3.

Another question is, whether for this purpose, the fund already accrued from the rents of the real estate, shall be appropriated to raise that part of the annuities, which is charged on the rents of the real estate. The Court are of opinion, that that is the suitable and proper fund thus to be appropriated and set apart for that purpose. 4. In regard to the investment of this money with the Hospital Life Insurance Company, the Court are of opinion, upon some consideration, that it is not expedient to direct such an investment.

The executor is the proper and suitable trustee for this purpose, and it seems to be more proper and agreeable to the ordinary course of the settlement of estates, that he should remain a trustee for this purpose. This is the more proper and necessary, as he is expressly bound by the obligation he is already under, to pay the annuities. He may make any investment which he thinks safe and proper for this purpose. It might perhaps be convenient, to enable the executor to settle the whole estate, to direct him thus to make this investment, if he could thereby be discharged.

But perhaps the result will be the same when he is directed to reserve $ 10,000 for this purpose, one half from each fund, as proposed by the master, as he will then be able to pay over and distribute all the residue, and thus make a full settlement of the estate. The decree may be drawn up accordingly.