A bequest of money to a married woman, charged by the will upon lands of the husband mortgaged to the testator, by the terms of which bequest the interest of the sum is to go to her during her life, and the property to her children, at her decease, does not entitle her to receive the principal sum; but the same should, no trustee being named in the will, be retained by the executrix to enable her to carry out the directions of the testator.
AMES, C.J.
The claim of the plaintiffs to recover the amount of this legacy, that thereby they might pay with it, pro tanto, the mortgages upon the land of the husband upon which it is a line, would, if admitted, defeat the whole purpose of the testator. His notion evidently was, that the mortgages never would be paid; and the therefore charges upon the land mentioned in them, and which he declares, though it seems by mistake, to be in his possession, this legacy, as "a permanent lien" thereon. His evident intent was, to secure upon the husband's property this provision for the wife, his niece, and for her children; "so," as he expresses it, "that the interest of said bequest shall go to my said niece during her life, and that the property thus bequeathed shall go to her children at her decease." Language cannot be conceived more expressive of a design that the niece should receive only the interest of the legacy whilst she lived, and that the capital should be secured and paid over to her children when she died. As no trustee is interposed by the will, this duty must be performed by the executrix; and the possession of the fund is necessary to enable her to perform it.
Judgment must therefore be entered for the defendant for her costs.