showed that his judgment had been satisfied, and it may be that the plaintiff, while his judgment remained satisfied of record, could not have maintained any suits upon the judgment, and could not have attached the defendant's property in any proceeding upon the judgment, and that his only remedy was by scire facias under the statutes. Dennis v. Arnold, 12 Metc. 449; Perry v. Perry, 2 Gray, 326. But, if the levy was actually void, the defendant was still indebted to the plaintiff, although this indebtedness must be established in a particular manner; and, if the defendant knew or was advised that the levy was void, she could actually intend to defeat, delay, or defraud the plaintiff by making a conveyance of her property, although his judgment remained satisfied of record. Besides, a conveyance made upon a secret trust, and with an actual fraudulent intent, may be avoided by subsequent creditors. Parkman v. Welch, 19 Pick. 231; Wadsworth v. Williams, 100 Mass. 126; Dodd v. Adams, 125 Mass. 398; Bristol Co. Savings Bank v. Keavry, 128 Mass. 298; Day v. Cooley, 118 Mass. 524.

One question of law raised by the report is whether there was evidence for the jury that the conveyance was made by the defendant Goodell "with intent to defeat, delay, or defraud her creditors, or on a secret trust for her, express or implied," and whether the defendant Chamberlain, "participated in said fraudulent intent and purpose. 99 The defendants were brother and sister, and were living together. The deed was given under the advice of her counsel, and there was clearly evidence on which the jury might find that both the defendants knew or believed, at the time the deed was executed, that the levies upon both the farm and the pasture lot were void, and that the farm, if the title remained in Mrs. Goodell, was liable to be levied upon by the plaintiff, if he obtained a new execution on his judgment. The following questions and answers show Chamberlain's knowledge and intent at that time. "You knew, didn't you, or supposed, that that levy, [the plaintiff's levy] was not good for anything? You was told so? Answer. Yes. You knew or believed, didn't you, if this levy was set aside, that the judgment debt of Plimpton and A. M. Chamberlain had not been paid? A. Yes. But it was for the purpose of preventing Plimpton, or it was for fear that Plimpton would take some proceedings against this estate, that you took your deed,— that was one of the reasons? Answer that 'yes' or 'no.' A. Yes."

After Mr. Chamberlain had been advised by Mrs. Goodell's counsel to take a deed of the farm, he and Mrs. Goodell went to the office of her attorney, and the deed was made, acknowledged, and subsequently recorded. It purports to convey a fee-simple absolute in the farm to Chamberlain, reserving an estate of homestead. A bond was taken by Mrs. Goodell, which recites that "Chamberlain takes said farm, and agrees to try the title of the same," and is on condition that the obligation be void if Chamberlain shall reconvey the farm to Mrs. Goodell upon payment of all sums due to him "for moneys loaned and services performed," in the present or the future. The existence of this bond was apparently kept a secret until it was produced at the trial. There was evidence that this farm was all the property Mrs. Goodell had. The acts of the two defendants, with the facts which are directly shown to have been known to Chamberlain, and which the jury might, on the evidence, well find were known to Mrs. Goodell as well as the form of the transaction, were evidence against both of an actual intent to defeat, delay, and defraud the creditors of Mrs. Goodell, of whom the plaintiff was believed to be the principal if not the only one whom they intended should not be paid. Mrs. Goodell was not called as a witness, and was not present at the trial. There was evidence that at the time of the trial she was too ill to attend, and too ill to have her deposition taken. Her counsel did not ask for a postponement on this ground, nor had they attempted before the trial to take her deposition. The facts were suspicious, and called for explanation on her part; and the absence of any explanation by her, by deposition or otherwise, was a circum

stance to be considered in connection with the excuse of ill health which was given. It is plain that the plaintiff's motion that the court direct the jury to find the issue in the affirmative ought not to have beer granted. The burden was upon him, and there was no admission or concession by both defendants from which such a verdict must necessarily follow. The question was for the jury.

The verdict must be set aside, and a new trial ordered. So ordered.

(143 Mass. 443)

SHAW, Jr., v. CORDIS.

(Supreme Judicial Court of Massachusetts. Hampden. January 13, 1887.) WILL-INVESTMENT FOR LIFE-TENANT-SECURITY PURCHASED AT PREMIUM-RETENTION OF PORTION OF INCOME TO SAVE THE FUND INTACT.

Under a clause in a will directing trustees to purchase certain bonds, and "to pay over all the dividends and income of said stocks," over and above costs of executors and trustees, "as fast as they shall be received, in equal proportions, to each of" the testator's sons for life, with remainder over, the whole income must be paid to the sons, without any deduction to make good to the remainder-men、a premium which it was necessary to pay in purchasing the bonds.

Appeal from the decree of the probate court on the first account of John O. Shaw, Jr., trustee under the will of Thomas Cordis. Hearing in the supreme court before FIELD, J., upon the question of the appeal of the trustee from the disallowance of the sum of $221.65, being the "reserve of income of government bonds to cover principal towards reduction of premium." Upon this question the presiding judge reserved the cause for the determination of the full court. The facts are stated in the opinion.

T. H. Russell, for appellant.

The question in this case includes that decided in New England Trust Co. v. Eaton, 140 Mass. 532, S. C. 4 N. E. Rep. 69, with a further question as to the extent of the decision in that case. In this case the trust was created in 1855. The surviving executor, and who has acted as trustee, (see Treadwell v. Cordis, 5 Gray, 358, 360,) resigned in July, 1885. The present trustee was then appointed, a new appraisal ordered and made, and a new bond required and given. Does the new appointment and appraisal alter the status of the fund at all? Does it capitalize the amount of premium values in trust at and by the new appraisal, or does the fund remain, as between life-tenant and remainder-man, the same as in the hands of the executor as aforesaid? Each case of this character must be dealt with "on its particular circumstances." Hemenway v. Hemenway, 134 Mass. 446. It is a fair question whether or not the particular language of this will makes for the contention of the appellee. New England Trust Co. v. Eaton, 140 Mass. 540; S. C. 4 N. E. Rep. 69. Still, what is dividend and what is income is always the question. All the "dividends and income" means no more than "all the income." This case, so far as a reservation of $219.70 is concerned, is exactly the case of New England Trust Co. v. Eaton, 140 Mass. 536, S. C. 4 N. E. Rep. 69, unless the new appraisal is to affect the question. See Pub. St. c. 141, §§ 13-15; Id. c. 144, § 3. This case finds terminable bonds, with a premium value of $58,296, as appraised by order of court, and inventoried to him at that value, but not bought by him, and bought for a much less premium value in the aggregate. Does the rule in New England Trust Co. v. Eaton apply to this premium value so coming to the appellant? Are the appraisal and inventories equivalent to a purchase by the new trustee? The reason of the rule would not seem to apply if the possession of the present trustee is to be deemed but the continuing possession of the original executor, acting as trustee as aforesaid.

The appraisal is to be made in manner as in case of deceased persons, and, we assume, on the same principles. Pub. St. c. 141, § 15. In the case of

deceased persons, the premium value, or some part of it, is a part of the principal. Kinmonth v. Brigham, 5 Allen, 279; Minot v. Thompson, 106 Mass. 585; Westcott v. Nickerson, 120 Mass. 412. The premium paid by a trustee for terminable bonds is principal. New England Trust Co. v. Eaton, ubi supra. The ordering by the court of a new appraisal, and valuation of assets coming to the hands of a succeeding trustee, would seem, by necessity, to fix a new capital sum, as it should be made, on the same principles as in case of deceased persons. The value of a trust fund "should be ascertained as of the time when the enjoyment of the income is to commence." Kinmonth v. Brigham, 5 Allen, 278, 279. The value of a trust fund, as ascertained at the time that the first taker's rights are fixed, cannot be said to be its permanent value, as increments and losses of capital are constant. Yet a trustee is not to be called on to fix a new capital sum with every day's fluctuation of value. But the revaluing the assets by order of the court, in compliance with the statute provision, (Pub. St. c. 141, § 14,) seems to be an act of a character that may have that effect.

The new appraisal may work a hardship to the life-tenant in this case. It seems also a hardship that the premium paid in this case, on one class of bonds, of $4,394.10, should have to be restored out of the interest, while the present state of the funds shows a gain to the remainder-man of above $30,000 on another class of bonds in the same trust, if the trust were now to terminate. But this must all disappear if the bonds are held to maturity, as the presumption is they will be. If the former trustee had closed his accounts by selling out all the bonds, and handing over the value in money, and the new trustee had bought the same bonds with the money, the whole $58,296 would fall at once under the rule of New England Trust Co. v. Eaton, ubi supra. Does this difference in the form of passing these assets from one trustee to another make all this difference to the respective parties,-life-tenants and remainder-men? The question in this case is made by the new inventory and appraisal. If this is to have no effect on the respective rights of parties, then the present trustee must, under New England Trust Co. v. Eaton, reserve out of the interest on terminable bonds, bought at a premium by the executor, acting as trustee as aforesaid, or himself, such amounts as will restore the amounts of premiums so paid; and the amount of premium value, as shown by the new appraisal on terminable bonds, will, in the end, be a depreciation from the inventory value, for which he will be allowed in his final account as having occurred without his fault. The only method of protecting himself is to reserve out of the interest such sum as will make good the whole premium value, to-wit, $221.65 of the particular item of interest referred to in the account, and from the disallowance of this charge the appeal is taken. We submit that a reservation of $219.70 must be made by the trustee in this case, in accordance with the rule laid down in New England Trust Co. v. Eaton; and a larger reservation, say $221.65, as charged in his account, if a new capital of the fund in trust has been fixed by the new appraisal. The probate court disallowed the whole item, and the appellant's appeal must therefore be sustained, at least, to the extent of allowing the item to the amount of $219.65.

J. E. McIntire, for appellee.

When all the personal property had been invested, the only duty of the trustee was to divide the income as received, and, when any class of said bonds matured, to reinvest the principal sum, as by the terms of the will the income should have been divided as received. If any portion of the income had heretofore been contributed to maintenance of the principal, the remainder-man has, profited by the loss of the life beneficiary. He explicitly directs the trustees to pay over all the dividends and income of said stocks, over and above the costs and charges of said trustees, as fast as they shall be received, with no other qualifications, and yet he anticipated that such bonds and stocks

would command a premium; for he says: "Invest in city of Boston's, if they can be obtained at a reasonable price, otherwise in stocks of Massachusetts or the United States." His controlling purpose was to make a perfectly safe investment, which should afford his sons a sure and regular income, and therefore he decides for the trustees what investments they shall make, and how frequently they shall divide the income, and, at the decease of his sons, they "shall convey, assign, transfer, and set over said real estate and stocks to said heirs of my said sons," etc. In no place does he make mention of any principal sum or trust fund. Specific stocks are to be bought, and, when the contingency arises, are to be transferred. It cannot be supposed that a father, at the time of making his will, would have been so desirous to provide a large fund for his grandchildren (then probably not in existence) that he would make the income of his sons liable to serious reduction therefor.

If the court should reach the second question raised by the agreed statement, it seems too plain for argument that the basis of the retention of any part of the income should be estimated upon the price paid for bonds by former trustee, and not upon the rate at which they were inventoried to the present trustee. The mere change of trustee should not operate to the injury of the life-tenants. As far as the inventory is concerned, it is only a guide for the proper control of the estate; and, whenever the trustee settles his account, all proper allowances for variations in values can be made.

As to the third question,-the offset of the gain on certain bonds bought below par against the loss on those purchased at a premium,-the amount is inconsiderable. It would be equitable that it should be done, unless it unreasonably complicates the accounts of the trustees.

C. ALLEN, J. If a testator leaves bonds, which he owns, to trustees, with direction or authority to hold the same, paying the interest to certain persons for life, with remainder over, the fact that such bonds are worth a premium at and after his death will not warrant the trustees in retaining any portion of the interest for the benefit of the remainder-men. To this extent, at least, the decisions heretofore made by this court agree. Hemenway v. Hemenway, 134 Mass. 446, 452; New England Trust Co. v. Eaton, 140 Mass. 532, 542, 543; S. C. 4 N. E. Rep. 69.

In the present case the testator did not own the bonds in question at the time of his death, but in his will he gave explicit directions to his trustees to convert the residue of his estate into three enumerated kinds of securities, which include these bonds, in which respect this case differs from that last cited above. It does not appear what value any of them then bore. It has not been intimated in the argument, and there is no legal presumption, and there is nothing in the known history of the time enabling us to see, that the testator must have contemplated that any of them could certainly be bought below or at par. So far as we know or can assume, they might cost a premium. Nevertheless, he left no discretion in his trustees to go beyond the securities particularly specified. The trust was to end with the death of his last surviving son, and this might end at any time,-possibly long before the maturity of the bonds. His sons were the prominent objects of his bounty. This was declared when the will first came before this court for construction. Treadwell v. Cordis, 5 Gray, 341, 355. Under these circumstances, having given this direction for conversion into the specified securities, which, after the manner of that time, he calls stocks, he adds the injunction "to pay over all the dividends and income of said stocks," over and above costs and charges of the executors and trustees, "as fast as they shall be received, in equal proportions to each of my said four sons." In point of fact, the trustees paid a premium for most of the bonds. It is not necessary, if it is possible, to lay down any further rule for the case than to look for the intention of the testator. The question is whether any intention as to the disposition of the income, with reference to the re

spective rights of the life-tenants and remainder-men, can be collected from the will. We think it can. The fair construction of the will leads to the conclusion that the testator intended that the whole income, after conversion into the prescribed securities, should be paid to his sons, without any deduction to make good to the remainder-men the premium which it might be necessary to pay in purchasing them. See Lambert v. Lambert, L. R. 16 Eq. 320; Brown v. Gellatly, L. R. 2 Ch. App. 751, 758; Chancellor v. Brown, 26 Ch. Div. 42.

Decree of judge of probate affirmed.

(143 Mass. 439)

SHERBURNE v. SISCHO and another.

(Supreme Judicial Court of Massachusetts. Suffolk. January 11, 1887.) WILL-WHEN TITLE VESTS-CUMULATIVE TRUST.

A will bequeathed the residue of the testator's estate "to his nephews and nieces in severalty, to share and share alike," except a son of his brother A., and provided that the executors were to pay one-half of each portion directly to them, respectively, and that the other half should form a trust fund for the benefit of said nephews and nieces; the income to be equally divided during their lives. The will continued: "At the decease of either of the said nephews and nieces, I give and bequeath such one's half portion and interest on the trust fund to his or her legal heirs; and at the decease of all my nephews and nieces, I give and bequeath the principal of said trust fund to their legal heirs, including the heirs of the son of my brother A." Held, that the heirs of a deceased niece are, on her death, immediately entitled to the part of the fund held in trust for her, and the last clause must be regarded as intended simply to provide that the heirs of A.'s son were not to be excluded if they happened to be the heirs of a deceased nephew or niece.

Bill by John H. Sherburne, trustee under the will of Jacob Foss, to obtain the instructions of the supreme judicial court as to the construction to be put upon the will. Hearing in the supreme court before GARDNER, J., who reserved the case for the consideration of the full court. The facts are stated in the opinion.

Jabez Fox, for persons not in being.

It is plain that the testator meant by "such one's half portion" the half portion which was not in the trust, but might not have been wholly paid to the first taker, because of the time required by the executors in winding up the estate. "Interest" is contrasted with "principal," and shows that income only of the trust fund was to be paid to the heirs until all the nephews and nieces had deceased, and then the principal was to be distributed. The single question of the intention of the testator upon this point is all that I find in the case.

S. T. Harris, for defendants in being.

We submit that the words, "and, at the decease of all my nephews and nieces, I give and bequeath the principal of said trust fund to their legal heirs," should be stricken out, and probably no question would be raised for the consideration of this court. The bill shows that the property left by the testator was wholly personal, and has so remained in trust. It is evident that the testator did not die intestate as to any part of his property. Hooper v. Hooper, 9 Cush. 122; Chase v. Chase, 132 Mass. 473; Given v. Hilton, 95 U. S. 591; Kelley v. Meins, 135 Mass. 231; Ladd v. Whitney, 117 Mass. 201; Briggs v. Shaw, 9 Allen, 516; Howard v. Carusi, 109 U. S. 725; S. C. 3 Sup. Ct. Rep. 575. The words "legal heirs" are to be taken in their literal sense. Merrill v. Preston, 135 Mass. 451. See Gifford v. Choate, 100 Mass. 343, 345. A fee will not be held to be cut down by ambiguous words. Ladd v. Whitney, 117 Mass. 201; Hills v. Simonds, 125 Mass. 536; Gray, Rule against Perpetuities, 389. The rule against perpetuities, as applied to bequests of personal property, appears to be that the gift to the first taker must not exceed a gift for life. Albee v. Carpenter, 12 Cush. 382; Hooper v. Bradbury, 133 Mass. 303.