Shaw, C. J.
The personal property of the testator was undoubtedly vested in the executor, to be held upon the trusts declared in the will. . And though the legal estate in fee is not devised to the executor, in terms, yet no question, on that point, was suggested at the argument; and we therefore axe of opinion, that both the real and personal estate vested in the executor, upon the same trusts, to go to the same persons, and in the same proportions.
1. On the first ground suggested in the bill, the court are of opinion that the bill cannot be sustained upon that part of the trust, declared in the will, which directs the investment of the trust fund. So far as security and productiveness are concerned, there is no suggestion that it is not well invested. The court would be slow to interfere to control the discretion of the trustee on this subject, and would do so only in a case where it should be made apparent that the actual or proposed investment would put the fund at hazard, or otherwise threaten a great loss to the beneficiaries.
2. If the bill can be sustained at all, it must be on the trust to maintain the complainants. The phraseology of the testator, in his will, is this: In regard to his son, “ that he be prudently maintained; ” as to his son’s wife, “ that she be maintained; ” and as to the eight children, that they “ be prudently maintained by my executor, out of my estate, until they arrive at full age.”
Maintenance is a term of somewhat large import, and must be construed in reference to the subject. Taking the amount of the estate, and the relations of the parties, we think it was [287]*287not intended, in this will, to be confined to a bare subsistence; such amount as would be sufficient to board them singly. These parties were all to be maintained; the parents for their lives, and the children whilst under age. The parents were still to have the care, custody and education of their minor children, and the children were still entitled to the protection and comfort to be derived from their parents. It is a reasonable construction of the provision, that it was intended that they should live together in the enjoyment of family relations, and the rights and duties arising therefrom. Had such provision been made for the maintenance of a single person, oí either sex, of mature age, it might reasonably have a different construction.
Supposing, then, that it is a just and equitable construction of this trust, that this family are to be maintained together, at least whilst a majority of the children remain under age, the question is, whether it is within the power of the trustee, and if so, whether it is a proper and just fulfilment of that trust, to provide for them a dwelling-house.
We are aware that it is a rule in equity, that under a trust for maintenance, the court will not, in general, authorize the application of capital to maintenance, unless when it is quite small, and the occasion urgent; but it cannot have much application to a case like this. It is not here proposed to expend any portion of the capital for maintenance, but to place a portion of the capital, subject to the same trusts as before, in such a situation, that those who, as a family, are entitled to maintenance, may have the specific use and occupation of it, instead of its being, placed in such a situation as to yield income, and that income to be so applied.
The clause, directing the separate receipt of the husband and of the wife, respectively, to be taken, is relied upon to show the understanding of the testator that this provision for maintenance would be paid in money. As it might all be paid in money, and as part of it would, probably, be so paid, such a provision was proper, to effect the object of the testator, which obviously was, as to the husband, to exclude cred* [288]*288itors, and as to the wife, to make it independent of the husband. But it carries no implication that the whole must be paid in money, and therefore does not exclude the inference of an intention, on the part of the testator, that the son, and his wife and family, might have the use of a part of the trust property, as incident to part of the provision for their maintenance.
One mode of testing the question would be this : Suppose the father, leaving an only son and child, (as in the present case,) with a family, had left a suitable and convenient dwellingnouse — his own mansion house, or any other — would it not have been a good execution of the trust, especially during the minority of most of the children, to permit the son, with his children, to occupy such house, as a part of the provision for maintenance ? We think it would.
As to providing a house when the trust estate does not supply one, there are certainly some objections to it. It would be, in the first instance, a means of providing maintenance for the parents and seven of the children only, and for them whilst they continue to be minors; but the children are successively to come of age, when the provision for their maintenance, respectively, will cease, whilst the investment in the house will remain the same. Although this is an objection to this specific mode of providing maintenance, we think it is not decisive. Taking the ordinary chances of life, the parents are likely to survive a considerable number of years, and whilst they live, they will need a dwelling-house for themselves; and although the children, after coming of age, will not be entitled, in strict right, to the use of the house, as part of their maintenance, yet it is among the reasonable wants of such parents, to be able to afford hospitality, at their own house, to their emancipated children.
But we do think there is so much weight in this objection, that it should deter the trustee from building a house, if a suitable one can be hired for a considerable number of years, say five or seven years; and it should also deter him from building a house so large or expensive, that it would not [289]*289readily sell, at nearly the cost, after a suitable deduction for wear and decay ,• or that would not let at a rent which would be a fair income on the investment, or as nearly so as houses, in a similar situation, will usually sell or let. By keeping within these limits, the trust estate will not be essentially diminished. As Framingham is the place where the family resided during the testator’s life time, and have continued to reside since, and, as appears by the evidence, is altogether a suitable and convenient place for the residence of such a family, having regard to schools and the means of education, we think it is within the authority of the trustee, and his duty, in that capacity, to procure a suitable house in Framingham, of a style such as would render it a suitable investment of capital in that town, so that, after it should cease to be used for the family, it might remain part of the trust property, for the purpose of being let or sold. But this would exclude a house of elaborate and expensive finish and high cost, not likely to be sold or let, in that place, for a price reasonat ly proportioned to the cost. We should be inclined to think, from the evidence adduced, that such a house might be erected at a cost somewhere from three to five thousand dollars.
But we think that such investment is not necessary, if a suitable house can be hired, at a fair rent, for Jive or seven years; and if a house is necessary to be built, it is not for the court to prescribe the details, that may be properly referred to a master.
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Shaw, C. J.
The personal property of the testator was undoubtedly vested in the executor, to be held upon the trusts declared in the will. . And though the legal estate in fee is not devised to the executor, in terms, yet no question, on that point, was suggested at the argument; and we therefore axe of opinion, that both the real and personal estate vested in the executor, upon the same trusts, to go to the same persons, and in the same proportions.
1. On the first ground suggested in the bill, the court are of opinion that the bill cannot be sustained upon that part of the trust, declared in the will, which directs the investment of the trust fund. So far as security and productiveness are concerned, there is no suggestion that it is not well invested. The court would be slow to interfere to control the discretion of the trustee on this subject, and would do so only in a case where it should be made apparent that the actual or proposed investment would put the fund at hazard, or otherwise threaten a great loss to the beneficiaries.
2. If the bill can be sustained at all, it must be on the trust to maintain the complainants. The phraseology of the testator, in his will, is this: In regard to his son, “ that he be prudently maintained; ” as to his son’s wife, “ that she be maintained; ” and as to the eight children, that they “ be prudently maintained by my executor, out of my estate, until they arrive at full age.”
Maintenance is a term of somewhat large import, and must be construed in reference to the subject. Taking the amount of the estate, and the relations of the parties, we think it was [287]*287not intended, in this will, to be confined to a bare subsistence; such amount as would be sufficient to board them singly. These parties were all to be maintained; the parents for their lives, and the children whilst under age. The parents were still to have the care, custody and education of their minor children, and the children were still entitled to the protection and comfort to be derived from their parents. It is a reasonable construction of the provision, that it was intended that they should live together in the enjoyment of family relations, and the rights and duties arising therefrom. Had such provision been made for the maintenance of a single person, oí either sex, of mature age, it might reasonably have a different construction.
Supposing, then, that it is a just and equitable construction of this trust, that this family are to be maintained together, at least whilst a majority of the children remain under age, the question is, whether it is within the power of the trustee, and if so, whether it is a proper and just fulfilment of that trust, to provide for them a dwelling-house.
We are aware that it is a rule in equity, that under a trust for maintenance, the court will not, in general, authorize the application of capital to maintenance, unless when it is quite small, and the occasion urgent; but it cannot have much application to a case like this. It is not here proposed to expend any portion of the capital for maintenance, but to place a portion of the capital, subject to the same trusts as before, in such a situation, that those who, as a family, are entitled to maintenance, may have the specific use and occupation of it, instead of its being, placed in such a situation as to yield income, and that income to be so applied.
The clause, directing the separate receipt of the husband and of the wife, respectively, to be taken, is relied upon to show the understanding of the testator that this provision for maintenance would be paid in money. As it might all be paid in money, and as part of it would, probably, be so paid, such a provision was proper, to effect the object of the testator, which obviously was, as to the husband, to exclude cred* [288]*288itors, and as to the wife, to make it independent of the husband. But it carries no implication that the whole must be paid in money, and therefore does not exclude the inference of an intention, on the part of the testator, that the son, and his wife and family, might have the use of a part of the trust property, as incident to part of the provision for their maintenance.
One mode of testing the question would be this : Suppose the father, leaving an only son and child, (as in the present case,) with a family, had left a suitable and convenient dwellingnouse — his own mansion house, or any other — would it not have been a good execution of the trust, especially during the minority of most of the children, to permit the son, with his children, to occupy such house, as a part of the provision for maintenance ? We think it would.
As to providing a house when the trust estate does not supply one, there are certainly some objections to it. It would be, in the first instance, a means of providing maintenance for the parents and seven of the children only, and for them whilst they continue to be minors; but the children are successively to come of age, when the provision for their maintenance, respectively, will cease, whilst the investment in the house will remain the same. Although this is an objection to this specific mode of providing maintenance, we think it is not decisive. Taking the ordinary chances of life, the parents are likely to survive a considerable number of years, and whilst they live, they will need a dwelling-house for themselves; and although the children, after coming of age, will not be entitled, in strict right, to the use of the house, as part of their maintenance, yet it is among the reasonable wants of such parents, to be able to afford hospitality, at their own house, to their emancipated children.
But we do think there is so much weight in this objection, that it should deter the trustee from building a house, if a suitable one can be hired for a considerable number of years, say five or seven years; and it should also deter him from building a house so large or expensive, that it would not [289]*289readily sell, at nearly the cost, after a suitable deduction for wear and decay ,• or that would not let at a rent which would be a fair income on the investment, or as nearly so as houses, in a similar situation, will usually sell or let. By keeping within these limits, the trust estate will not be essentially diminished. As Framingham is the place where the family resided during the testator’s life time, and have continued to reside since, and, as appears by the evidence, is altogether a suitable and convenient place for the residence of such a family, having regard to schools and the means of education, we think it is within the authority of the trustee, and his duty, in that capacity, to procure a suitable house in Framingham, of a style such as would render it a suitable investment of capital in that town, so that, after it should cease to be used for the family, it might remain part of the trust property, for the purpose of being let or sold. But this would exclude a house of elaborate and expensive finish and high cost, not likely to be sold or let, in that place, for a price reasonat ly proportioned to the cost. We should be inclined to think, from the evidence adduced, that such a house might be erected at a cost somewhere from three to five thousand dollars.
But we think that such investment is not necessary, if a suitable house can be hired, at a fair rent, for Jive or seven years; and if a house is necessary to be built, it is not for the court to prescribe the details, that may be properly referred to a master.
It may also be matter of doubt, on the evidence, whether the lot described in the bill would be suitable for the purpose, and whether it would be expedient to build thereon.
We think, therefore, it is proper to refer it to a master, to inquire and report, Jirst, whether a suitable house in the town of Framingham can be hired, for a term of time, at a reasonable rent, suitable for the residence of such a family ; if not, secondly, what would be the cost of a house in that town, suitable for such a family, and which, within the principles above stated, would be a reasonably fair investmen1 of the property, [290]*290having regard to the future sale of the house, or to the rent which would be likely to be obtained for it; thirdly, whether it would be expedient, having regard both to the title and to the economy of building, to erect a house on the lot described in the bill, or whether a more suitable and eligible lot can be purchased, at a reasonable cost, in Framingham, and how the title should be taken, so as to make it a part of the estate, liable to, and bound by, all the provisions and trusts of the will.
As to an investment in furniture, we are of opinion that the same reasons apply; and that it is within the power, and is the duty, of the executor and trustee to appropriate from the trust fund a sum sufficient to furnish the said house, when hired or erected, in a suitable manner. One reason for this, in addition to the grounds stated, is this : This house is to be, in part, for the maintenance of the wife and minor children, which it could not be, if not furnished. Now, if by way of a provision for maintenance, the trustee should furnish Lawson Kingsbury with money to purchase furniture — which seems the only alternative — it would, when purchased, be his property and liable to be taken for his debts ; contrary to the plain intention of the will. But if a suitable amount be invested by the executor and trustee, in his own name, as such, it will remain his property; by means of which, all the beneficiaries, the wife and children as well as Lawson Kings-bury himself, will specifically enjoy the benefit of it, as trust property. And though it may be diminished in value by use, and if the trust last long enough, may wear out, yet such gradual diminution will stand in the place of the expenditure of money for the same purpose, and will relieve the residue of the trust fund to the like extent.
We think, therefore, it may be referred to the master, to inquire and report what amount it may be necessary to expend for the furniture of said house, when ready for occupation.
All other directions are reserved till the coming in of the report.