HUGH W. OGDEN, executor, vs. HORACE G. ALLEN, trustee.

CROSBY, J. The testator, James N. Thompson, died on February 12, 1909, leaving a widow, Helen A. Thompson, who, with the appellee, as appointed an executor and trustee under his will. The appellee is the surviving trustee. The widow died on January 30, 1914, and the appellant is the executor of her will.

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By the terms of her husband's will the widow was given "from the net income of said trust property such sum or sums as she may in writing request of said trustees during her life not exceeding the sum of four thousand (4000) dollars in any one year." She did not waive the provisions of the will, and in writing requested the executors and trustees to pay her $4,000 a year during her life. During no year in her lifetime did the net income from the trust property equal $4,000. The estate consisted in part of parcels of vacant and unproductive land, including an undivided one half interest in a lot on Commonwealth Avenue in Boston, which was subject to a mortgage of $10,000.

The agreed statement of facts recites that "Various pieces of unproductive real estate were sold prior to the death of Helen A. Thompson, and the amounts received therefor were divided between principal and income, as appears by the executors' and trustees' accounts filed, and the income paid to Helen A. Thompson." The lot of land on Commonwealth Avenue above referred to was sold by the surviving trustee after the death of the widow. The executor of her will contends that the expense paid for maintaining this lot since the date of the testator's death, including interest on the mortgage, taxes and brokers' commissions on the sale, amounting in all to $2,569.16, which he had paid from income and of which $2,270.76 was paid during the lifetime of the widow, should be charged to principal and should not be deducted from income, and that an amount equivalent to all payments from income in the way of expenses in connection with the maintenance of the property since the death of the testator should be deducted from the proceeds of the sale and repaid to income, and the balance apportioned between principal and income; and that the executor of the will of the widow is entitled to such portion of the amount so repaid to income, and to such portion of the remaining proceeds of the sale, added to income by apportionment, as properly belonged to the period from the date of the testator's death to the time of the death of the widow.

The rule is well established that the tenant for life is entitled to the income to be computed from the time of the testator's death, unless a contrary intention is indicated by the will. It is the duty of trustees in the exercise of a sound judgment and discretion to convert unproductive property into an income producing

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fund as soon as reasonably can be done under all the circumstances. It is agreed in this case that in holding the Commonwealth Avenue property the trustees exercised a sound judgment. While the rule is settled, that generally taxes, interest and other expenses are to be charged to and payable out of income, it also is held that, where the property is unproductive and yields no income, such expenses are chargeable to principal, as otherwise the whole income might be used in the payment of such expenses and the life tenant receive nothing. Stone v. Littlefield, 151 Mass. 485. Edwards v. Edwards, 183 Mass. 581. Jordan v. Jordan, 192 Mass. 337.

It is agreed that the proceeds of sales of other parcels of unproductive real estate sold before the death of the widow were apportioned between principal and income in accordance with the rule as above stated. While such an apportionment between income and principal of the proceeds of the sale of the real estate in question undoubtedly properly could have been made during the lifetime of the widow, we are of opinion that such a division ought not to be so made at this time, — after her decease. The sale was not made until after her death; consequently, the fund did not come into existence until after that date and until all her rights under the trust had ceased. At the time when the fund was created, she had no beneficial interest in the trust.

The case of Richardson v. Hall, 124 Mass. 228, upon which the appellant relies, is plainly distinguishable from the case at bar. In that case the testator gave to his widow an annuity and the court held that it became vested in her and that her administrator was entitled to receive any balance thereof due and unpaid. In the case at bar no interest in the proceeds of the sale ever became vested in Mrs. Thompson. Whether the expenses incurred in the maintenance and sale properly could have been deducted from the principal of the fund during the lifetime of the widow need not be decided. See Edwards v. Edwards, ubi supra.

The decree of the Probate Court must be affirmed.

Ordered accordingly.