FRANCIS C. WELCH & another, trustees, vs. TRUSTEES OF THE EPISCOPAL THEOLOGICAL SCHOOL & others

MORTON, J. This is a petition by the plaintiffs as trustees under the will and codicil of Benjamin T. Reed praying that the trust may be terminated as to two thirds of the property held by them in trust, and that they may be authorized and directed to convey the same to the Trustees of the Episcopal Theological School who are the ultimate beneficiaries of the whole of the trust property. The said Benjamin T. Reed left a widow, and a son who was his sole heir and next of kin. By a codicil to his will he gave the rest and residue of his estate to trustees in trust first to make up out of the income any deficiency of income from property given in trust for his wife if the same did not amount to $15,000 in any one year, and then to divide the rest of the income into three equal shares, one to be paid to his wife for life, one to the son or the son's wife for life and the other to the theological school. On the decease of the testator's wife two thirds of the income were to be paid to the school and the other third was to be paid to the son and his wife or the survivor of them during their lives. On the decease of the son and his wife leaving children of the son the trustees were to convey one third of the principal to such children, and if the testator's wife should then have deceased, the other two thirds to the school. If the son and his wife should decease leaving no children of the son, and the testator's wife should also have deceased, then the trustees were to convey the residue to

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the school. At the time of the testator's death the son was married. His wife afterwards died and he married the defendant Martha S. Reed and died without children. A question arose as to whether the present Mrs. Reed was entitled under the codicil as the wife or widow of the son. An agreement of compromise was entered into between the widow of the son and the school in which the school recognized and conceded that she was entitled to the rights of the widow of the son for her life, and she agreed that on the death of the testator's widow the principal of the trust fund should be divided into three equal parts two of which should be conveyed to the school and the other should continue to be held in trust for her benefit for life and then go to the school. The testator's widow has now deceased and the son's widow and the school and the trustees are all desirous that the trust should be terminated as to the two thirds and the agreement between the son's widow and the school carried out as therein provided.

There is no doubt about the power of this court to terminate a trust in a proper case. Williams v. Thacher, 186 Mass. 293. Matthews v. Thompson, 186 Mass. 14. Sears v. Choate, 146 Mass. 395. There is also no doubt that a trust may be terminated as to certain property and continued as to other property. Williams v. Thacher, 186 Mass. 293, 300. Inches v. Hill, 106 Mass. 575. All that the trustees are required to do in the present case is to hold the property and pay over the income. They are not required to exercise an active discretion as in Danahy v. Noonan, 176 Mass. 467. The scheme of the trust is very different from that in Young v. Snow, 167 Mass. 287, and does not contemplate, as that did, the accumulation of income by the trustees and the expenditure by them of so much of it as might be necessary to keep the estate in repair. The case also differs from Claflin v. Claflin, 149 Mass. 19, and Hoffman v. New England Trust Co. 187 Mass. 205. The school is the equitable owner of the whole trust estate. It is entitled to the present income of two thirds of it. The postponement by the testator of the conveyance to it was for the benefit of his wife and his son's wife. The testator's wife is dead and the son's wife agrees to the conveyance. All parties in interest agree to and desire the termination of the trust as to the two thirds of

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which the school is entitled to the present income and we see no valid objection to it. The questions raised and the doubts suggested by the guardian ad litem as to the possibility of reverter in the heirs of the testator in case the corporation of the trustees of the theological school should be dissolved do not seem to us sufficient to warrant us in denying the prayer of the petition.

Decree for the petitioners.