
    Joseph Lovering vs. William Minot & others, Executors.
    Under a will by which all the residue and remainder of the testator’s estate is given to trustees, in trust to pay over and distribute the income to and among his five children, one fifth to each, during their respective lives, with remainder over, such children are entitled to their respective proportions of the income of such residue from the decease of the testator.
    Under a will by which the testator gives all his property in trust, with power to the trustees to sell and reinvest, and to make partition and division of the same, and to pay to the beneficiaries the income of the respective shares assigned to them, if the property remains undivided, each beneficiary is entitled to his proportion of the income actually earned by the trust fund, whether it exceeds six per cent or not.
    This was an action of assumpsit, on the money counts, to which the defendant pleaded the general issue. The parties agreed upon the following statement of facts.
    Joseph Lovering, of Boston, the father of the plaintiff, died on the thirteenth day of June, 1848, testate, and his will, to which there were two codicils, was proved in Middlesex county, (the judge of probate for Suffolk county being interested in the estate,) on the fourteenth day of December, 1848.
    The testator, after giving sundry legacies and devises, part of them in trust to Charlés Wells and William Minot, proceeds in the tenth clause as follows : —
    “ I give to said Minot and Wells, and to the survivor of them, his executors, administrators and assigns, twenty thousand dollars; but in trust, nevertheless, for the intents, uses and purposes as follows, and none other, namely: in trust to invest said sum on interest, and the net interest and income thereof to pay to my said son Joseph, [the plaintiff in this suit,] half-yearly or oftener, if convenient to my trustees, during his natural life, &c.
    And in the second clause of his first codicil as follows: —
    “ I give to my son, Joseph Lovering, the income of four thousand dollars, during his life; and at his decease I give said four thousand dollars to his heirs at law.”
    In the 3d, 5th, 15th, and 17th clauses of his will, and in the 5th clause of the first codicil, the testator gives to the same trustees the following pecuniary legacies, in trust, namely. $30,000 for the benefit of his wife; $10,000 for the benefit of his daughter Susan; $8,000 for the benefit of his daughter Caroline; $20,000 for the benefit of his son Nathaniel,, with remainder over. The trusts declared respecting these legacies are similar in terms and limitations with that declared in the 10th clause for the benefit of his son Joseph, and the interest and income thereof is to be paid to the beneficiaries, “ half-yearly, or oftener, if convenient to my trustees.”
    The testator then proceeds, in the nineteenth clause of his will, as follows : —
    “ I give to said Minot and Wells, their heirs, executors, administrators and assigns, and the survivor of them, his heirs, executors, administrators and assigns, all the, residue and remainder of my estate, real and personal, of every nature and description, including the reversion and remainder of all sums of money herein before given to said trustees for the support of life annuities to my wife and children and the widows of my children, and not given over after the decease of the annuitants ; together with all the estate, real and personal, which may be released to my trustees by the heirs or assigns of George Gay, Esquire, and by my wife, and all my property and estate, not bequeathed or devised in this will, whether in possession or reversion; but in trust, nevertheless, for the intents, uses and purposes as follows, and none other, namely: in trust to take care of and manage said estates, to take the rents, income, interest and profits thereof, and after deducting all necessary and reasonable expenses and charges for the care and management of said real and personal estate, and incident to the execution of the trusts created in this will, to pay over and distribute the net rents, income, interest and profits thereof, to and among my five children, William Lovering, Nancy Gay, Caroline Worthington, Joseph Lovering, Junior, and Nathaniel Philip Lovering, one fifth to each, during their respective lives, half-yearly, or oftener, if convenient to said trustees, &c.”
    In the twentieth clause, after giving his trustees very full powers as to investment, sale, &c., of the trust property, the testator declares: —
    
      “ That said trustees may, whenever they consider it expedient or necessary, make partitions and divisions of the estates and property held by them, or of any portion thereof, and may authorize the several parties for whose benefit said trusts are created, to take the income and profits of their respective shares; that, in the distribution of personal property, they may assign the stocks in which such property is invested, at their market value; that, in the distribution of several sums of money and estates above devised and given in trust, (except where it is otherwise ordered and directed,) the representatives of any deceased child or children shall take the share to which his, her, or their deceased parent or parents would have been entitled, if living.”
    In the seventh clause of the first codicil, the testator says:—
    “ I direct that the annuities, given in my will and in this codicil, shall commence immediately after my decease.”
    By the second codicil, Nathaniel P. Lovering was united and made co-trustee with Wells and Minot, in all the trusts of the will, and the same parties were appointed executors; Wells declined the trust of the executorship, and Minot and Lovering accepted that trust, and letters of executorship were duly issued to them. They all three accepted the office of trustees.
    On the ninth day of January, 1849, the executors filed an inventory of Mr. Lovering’s estate, which comprised sundry parcels of real estate, principally in Boston, appraised at the sum of $99,000, stocks to the amount of $77,493, notes and mortgages to the amount of $122,665.60 and furniture, &e., to the amount of $3,440.19
    
      On the thirteenth day of February, 1849, the executors filed their account, wherein they charge themselves: —
    “ With the amount of personal property exhibited in the inventory $203,588.79
    Sundry small items, not inventoried.210,00
    Interest, dividends and income received per schedule A. . . . 7,268.92
    Total . . . . $211,067.71."
    And they ask allowance of the following charges: —
    “Sundry pecuniary legacies paid (not those given in trust) $42,850.00
    Sundry specific “ “ “ “ “ “ “ 10,087.12
    Debts and charges of administration .... 10,634.20
    Amount retained to pay interest, as per testator’s bond . 1,500.00
    $65,071.32,’
    The account then proceeds thus: —
    “ The said executors also represent that the said testator, in and by said will gave and bequeathed sundry specific sums of money to William Minot, Nathaniel P. Lovering and Charles Wells, in trust for the intents, uses and purposes set forth in said will, the interest thereon to commence at his decease, to wit: —
    “Eor the use and benefit of his wife, Mary L. Lovering, and for other purposes.$30,000.00
    Interest from testator’s death. 1,200.00
    Eor the use and benefit of Susan M. Lovering, and for other purposes 10,000.00
    Interest from testator’s death. 400.00
    Eor the use and benefit of Joseph Lovering, and other purposes . 20,000.00
    Interest from testator’s death. 800.00
    Eor the use and benefit of Caroline Worthington, and other purposes 8,000.00
    Interest from testator’s death. 320.00
    Eor the use and benefit of Nathaniel P. Lovering, and other purposes 20,000 00
    Interest from testator’s death. 800.00
    Eor the use and benefit of Joseph Lovering, and other purposes . 4,000.00
    Interest from testator’s death. 160.00
    $160,751.32
    Leaving a balance of . . . ■ 50,316.39
    $211,067.71
    Which said balance or residuum of his personal estate the said testator gave anu bequeathed to the aforesaid William Minot, Nathaniel P. Lovering and Charles Wells, in trust for the intents, uses and purposes set forth in said will.
    And the said executors pray that the aforesaid specific sums given in trust as aforesaid, with the interest thereon, as herein charged, together with the aforesaid sum of $50,316.39, being the balance or rest and residue of his personal estate, may be allowed in discharge of their trust as executors, they having applied and paid the same to the said trustees, to be held in trust, agreeably to said will; all which, with the exception of $4,919.69 in cash, in the hands of said Minot, consists of tha notes, stocks, and obligations contained in said inventory.”
    
      On the twelfth day of June, 1849, the trustees filed an inventory of the trust estate, which exhibits, besides real estate, stocks appraised at the sum of $43,051, and notes and mortgages to the amount of $99,943.70.
    It is admitted that the items of the above account are correctly stated; that the interest there stated as paid on the pecuniary legacies given in trust, and as accruing from the death of the testator, was estimated at the rate of six per cent per annum; that, of the interest, income, and dividends received, as stated in the account, a portion was earned between the death of the testator and the settlement of the account, by the residue of $50,316.39, but that no part of the income so earned has been paid to the beneficiaries named in the nineteenth clause of the will, but is merged in the residue; that all the trust property delivered by the executors to the trustees has been held by them since the testator’s decease, in common and undivided, no division nor partition thereof into the several trusts having been made. And it is admitted that the income earned by the whole trust-funds, during the year subsequent to the testator’s decease, was more than six per cent.
    The plaintiff contended,
    1. That he was entitled to receive income, or his proportionate part thereof, on the residue of the testator’s estate, from the time of the testator’s death.
    2. That he was entitled to receive income on the legacy of $20,000, given in trust for his benefit, and on the legacy of. $4,000, in the proportion of the whole net income earned by the whole joint trust property and estate.
    If, in the opinion of the court, the plaintiff is so entitled, then a default is to be entered, otherwise a nonsuit.
    
      W. Minot, Jr., for the plaintiff.
    1. By the terms of the will, the plaintiff, as beneficiary, is entitled to income on the residue and remainder. See especially the 10th and 19th clauses oí ‘.he will, and the 2d and 7th of the first codicil.
    2. As a general rule of law, income on the residue and remainder is to be reckoned from the death of the testator. 
      Angerstein v. Martin, Turn. & Russ. 232; Hewitt v. Morris, ib. 241; Lamb v. Lamb, 11 Pick. 371; 2 Roper on Legacies, 1320; Williamson v. Williamson, 6 Paige, 298; Minot v. Amory, 2 Cush. 377.
    3. The executor’s account was erroneously settled. Debts, &e. should have been paid from the principal, and the income not merged in the capital. Minot v. Amory, 2 Cush. 377.
    There was no appearance for the defendants.
   Shaw, C. J.

This was an action of assumpsit by Joseph Lovering, son and legatee of Joseph Lovering deceased, against William Minot and Nathaniel Lovering, executors of the will of Joseph Lovering, Senior.

1. The first question is, whether the plaintiff, as one of the, five children, to whom the income of the residuum was given after paying debts and legacies, and setting apart sums given in trust to raise annuities, is entitled to the income which accrued during the first year after the testator’s decease.

After giving to the trustees a sum of $20,000, and $4,000 in trust to pay the income to his son, the plaintiff, and similar sums upon similar trusts for other children, the testator directs, that the residue be disposed of as follows: —

“I give to said Minot and Wells, (trustees,) all the residue and remainder, &c., (personal,) in trust, to invest, &c., and pay over and distribute the net income to and among my five children, William, &c., (including Joseph, Jr.,) one fifth each, during their respective lives, half yearly, or oftener,” — then over, with special and detailed directions.

Under this will, the court are of opinion that the plaintiff is entitled to one fifth part of all the income which accrued upon the residuum of the fund, from the time of the decease of the testator.

In the case as it exists upon the facts, it appears that there was an abundance of personal property to meet the debts and pecuniary legacies and from the trust funds, to raise annuities or incomes in the nature of annuities ; and the cestui que trusts, to whom the income of the residue is given, are entitled to the whole of that income from the decease of the testator.

And, although it could not be immediately paid over, be« cause the executors could not know how much would be wanted, and what the residue would be, yet the accounts, when afterwards made up, would show what part of the income accrued from capital, and what part from income accumulated, and then the income due to each would be ascertained.

We think, therefore, that, when the funds were transferred from the executors to the trustees, the assets showing what was received from income and what from capital, it was the duty of the trustees to distribute that part of it which was composed of interest, and retain the amount of capital as it existed at the decease of the testator, as the capital sum, constituting the residue, to be invested and held under the trust.

There has been some conflict of authorities on this subject. Some of the earlier cases seem opposed to this view, and tend to show, as a general rule, that interest upon a residue shall not commence till the expiration of the year. Sitwell v. Bernard, 6 Ves. 520; Stott v. Hollingworth, 3 Madd. 161; Taylor v. Hibbert, 1 Jac. & Walk. 308.

But the later cases have settled it the other way, as we think, quite decisively. Angerstein v. Marlin, Turn. & Russ. 234; Hewitt v. Morris, Ib. 241. And the same rule has been adopted in New York. Williamson v. Williamson, 6 Paige, 298.

And these cases seem to the court to have decided the question upon just principles.

It is a question between the first cestui que trust for life and the remainder-man. The effect of a different decision would be to apply the first year’s income to increase the capital ; to take it from the first taker, and apply it to an accumulation for the benefit of the future taker.

It is contrary to the presumed intent of the testator, to narrow the benefit intended for the first object of his bounty, for the benefit of an object more remote.

Besides, the words of the will are, “ the income,” with nothing to restrain them, and make them include anything less than the whole income.

2. Upon the other point the court are of opinion that the plaintiff is entitled to his proportion of the income actually earned by the trust fund, whether it exceeds six per cent or not.

The testator authorized his executors and trustees to retain the same stocks in which his property was invested at his decease, or transfer them and reinvest. He also authorizes them to keep the whole together, or make partition. In fact, they have kept the whole together. Had they made partition and assigned to the fund, for the plaintiff, stocks paying 'more than six per cent, the direction of the will is clear, to pay the net income to him. So long as all remain together, all must share any excess or deficiency in just proportion.

Defendants defaulted.  