Notwithstanding the provisions of the will and said judg ment all of the amount paid into plaintiff's trust has been administered as principal, and although testatrix treated her in all respects as a daughter and frequently expressed her intention of providing for her in the most liberal manner, the plaintiff received no income under the trust for several years, and then only such as accrued on the proceeds of sales of real estate treated wholly as principal.

On these facts, in connection with others not necessary here to recapitulate, plaintiff demands that proceeds heretofore or hereafter realized from the sale of real estate and belonging to the trust in her favor shall be apportioned between interest going to her and principal going to remaindermen by taking in the case of each sale as of the date of the testatrix's decease such a sum as at six per cent interest with annual rests will produce the amount realized on said sale and that said principal sum so taken shall be treated as principal under the trust going to remaindermen and that the balance of the proceeds shall be regarded as income belonging to her. The difference between what is thus demanded and the method of treating proceeds of sales which thus far has been pursued measures and defines the important issue between the parties.

Stated more definitely and completely, the legal question presented by the complaint and demurrer is whether under a will creating a trust of unproductive real estate, income payable to a life beneficiary and remainder to others, with an imperative power of sale and equitable conversion of the real estate into personalty at the death of the testator, with actual sale and conversion accruing only after a considerable delay, the testator will be held to have intended that the proceeds thus and when realized should be apportioned between income payable from the time of his death to the life beneficiary and principal belonging to the remaindermen, or whether he is to be assumed to have intended that the proceeds thus realized should

be treated wholly as principal with income payable thereon to the life beneficiary only from the date of actual conversion.

There is no opportunity for controversy in respect of most of the conditions which present and leave open to us in this case the question as thus stated. If it be true that if the questions were undetermined, there might be some discussion as to the nature and extent of the power of sale and as to the equitable conversion of the real estate, it is conceded that the judgment construing the will which has been referred to is a binding adjudication upon the parties to this action. There is a claim, however, that the clause containing a power to sell real estate for payment of taxes which has been quoted has an effect superior to any principles of interpretation which might otherwise be applicable, and imposes upon us a construction of the will adverse to plaintiff's claims. Disposition of this claim will be reserved until after consideration of the will upon its other features.

The basis of plaintiff's contention for an apportionment of proceeds between income for her and principal for the remaindermen is the argument that ordinarily the life tenant is an object of more immediate and greater solicitude to the testator than remaindermen who may not even be in existence during his life, and that it is not to be assumed that a testator intends that a provision of income for a life beneficiary shall be rendered nugatory by delay, whether willful or otherwise, in the creation of a trust fund which is to produce the income, and that, therefore, there ought to be such an apportionment of proceeds on a conversion when finally realized as will give the life tenant such income as the testator must have intended. Applying this general argument to the concrete facts of this case it is urged that the plaintiff was the favorite niece of testatrix, treated by the latter as a daughter and promised liberal provision; that the remaindermen are more remote relations; that the will imperatively required conversion of the real estate in

order to make up the trust fund and worked an equitable conversion as of the date of the testatrix's death; that while it may have been assumed that the trustees or executors would be compelled to exercise discretion as to the time and manner of sale, it ought not to be held by the court that the testatrix intended that the first object of her bounty should be deprived of all benefit under the will to the advantage of the more remote remaindermen during the years that might necessarily be occupied in finding a market for $8,000,000 worth of unproductive real estate; and hence there should be apportionment of proceeds when finally realized.

The question thus presented is one of construction of a will controlled by no statutory provision and to be settled by the authorities. It seems to me that such authorities so settle the question in favor of plaintiff.

In Gibson v. Bott (7 Vesey [1802], 89) the testator bequeathed to his executors his general residuary estate, including leasehold interests, upon trust, as soon as convenient after his death, to convert into money and invest the same and pay the income to his daughters in certain proportions. The leaseholds could not be sold for some time on account of defects in title.

Lord ELDON held that the proceeds constituted a fund for the benefit of the life tenants in trust, as well as for the remaindermen and should be apportioned between them. He said (p. 97): "As to the leasehold premises, that could not be sold, they cannot be considered otherwise than as property, which it was for the benefit of all parties to suffer to remain in specie; upon that, I think the plaintiffs may have interest upon the value from the death, for there is a consideration for that. The best decree in this cause will be to declare that the property to be converted has been converted in a reasonable time; that the persons entitled for life shall have the interest from that conversion; and as to the other leasehold premises, that it being for

the interest of all parties, that they should not be sold, a value shall be set upon them; and the persons entitled for life shall have interest at four per cent upon that value from the death of the testator."

In Kilvington v. Gray (2 Sim. & Stu. 396) it appeared that the testator had directed his residuary estate to be laid out in the purchase of the land as soon as a convenient purchase could be found in the county of York which upon a fair letting would produce a yearly rent equal to three and one-half per cent upon the amount of the purchase money, and in the meantime the interest of his residuary estate to be accumulated. Sir John LEACH, V. C., decided that the will did not give the trustees an indefinite time to convert the personalty and invest the proceeds in realty, as directed by the will, and, therefore, that the life tenant was entitled to interest on the testator's residuary personal estate from the end of one year after the testator's death.

In Taylor v. Clark (1 Hare [1841], 161; s. c., 66 Eng. Rep. 990) there was a contest between a beneficiary for life and the remaindermen. Among his assets, the testator owned an interest in a partnership in Portugal, which the executors were able to sell only after a lapse of same years. After giving certain specific legacies, the testator by his will gave the residue of his property to his executors to convert into money and invest in certain securities, and pay the income to his wife for life, and after her death, upon trust for the benefit of certain other persons with remainder over.

The life tenants in trust contended, as the plaintiff at bar does, that when the property was sold, the proceeds of the sale included principal and income and that they were entitled to an apportionment as between themselves and the remaindermen, and the court so held. Vice-Chancellor WIGRAM in de ciding the case said (p. 167):

"To the argument of the parties interested in remainder

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after the plaintiff's death, so far as it denies her right to any income in respect of the property in Portugal, until that property is gotten in and actually invested, I cannot accede. It is true, indeed, that the testator has not, in terms, given the tenant for life any benefit from his residuary bequest, except out of his property when converted into particular investments, and not until the property is so converted; but I cannot consider this alone to be an answer to the plaintiff's claim to have some income out of the property in Portugal, before it is gotten in and invested in the manner which the will directs. The court, in such cases, considers the interest of the legatees as the general and primary object of the testator, and treats his direction to convert and invest the property as a particular and secondary object a mode, in fact, of carrying the primary object into effect, and nothing more. In many cases it would be impossible to get in the property within a reasonable time. In some, it could only be done at a ruinous loss to the estate. In others, different degrees of diligence used by trustees and executors would materially affect the interests of a legatee for life, and might (as Lord ELDON observed in Sitwell v. Barnard) equally affect the interest of those in remainder. To obviate these and other inconveniences, and to give effect, as near as may be to the testator's intention, the court acting upon a general rule (Gibson v. Bott, 7 Ves. 94; Walker v. Shore, 19 Ves. 387) feigns the property to be converted, as directed by the testator, at the end of one year from his death, and, at least from that time, gives to the tenant for life the precise income which would be produced if the property were actually so converted, and in its proper state of investment. By doing this the court gives the tenant for life as large an amount of income as the testator intended, and nothing more."

It was decided that the "property in Portugal must be considered as converted and placed in a proper state of investment at that time," i. e., " a year after the testator's death," and that