#### Seth Ellis *versus*Phinehas Ellis.

A testator devised to his widow the profit and benefit of one half of his real and personal estate, during her life, and devised the same estate, after her death, to his children, two fifteenths to each of his sons, and one fifteenth to each of his daughters, and appointed one of his sons executor. The executor gave his bond to the widow, conditioned to furnish her with certain articles towards her support, in consideration of her conveying to him her interest in the real estate. By an instrument under seal, executed by several of the children, and assented to in writing by the widow, it was agreed that the personal estate in securities which was left to the widow should be placed in the hands of the executor, in trust that a part of the income should be applied to the support of the widow during her life, and the balance be divided every year equally between the parties to the agreement, and that at the decease of the widow the same personal estate, with the interest accrued thereon, should be divided among them in the same manner as if their father had di,ed intestate. In an action against the executor, after the death of the widow, by a son who had not executed the agreement, to recover his share of the personal estate and interest, it was *held,*that he was entitled to two fifteenths of the capital and of the interest which had accrued after the death of the widow.

*Held*also, that the executor could not charge the funeral or other expenses, on ac count of the widow, against this fúnd and the interest which had accrued subsequently to her death.

*Held*also, that in such action the executor was not entitled to retain any part of the same personal estate as a compensation for collecting in the assets of the testator, for it must be presumed that he received a compensation for such services upon a settlement in the probate court; but a commission for investing the capital and keeping it at interest during the life of the widow, and collecting it in afterwards, was allowed; also a commission on the interest which accrued after the death of the widow and was collected by him.

Assümpsit for money had and received. The parties stated the following facts.

On May 6, 1821, John Ellis, the fáther of the parties, made his last will, which, on June 5, of the same year, was duly approved. He devised to his wife Hannah Ellis, the use, profit and benefit of one half of his real and personal estate for the term of her natural life ; to his four sons, Phinehas, John, Seth and Charles, each of them, two fifteenth parts, and to his six daughters and the son of a seventh, each of them one fifteenth part, of all his real and personal estate, subject to the abovementioned life estate of the wife ; and he appointed his son Phinehas, the defendant, executor of the will. .Hannah Ellis, the testator’s widow, died on November 28, 1828. The executor paid in 1821 to the children and grandchild their respective proportions d' one half of the per*184sonal estate, and on the 7th of November of the same year, he paid over to the widow the other half of the personal estate, in divers secundes, amounting to $ 2744-48, including $ 73*74 interest then due on the securities, and delivered to her certain household furniture and other articles, of the value of $ 543*45, being half of all the personal property of which the testator died possessed. The executor took from the widow her receipt for the property so delivered to her, and her agreement to hold the securities for the purpose of receiving the interest during her life, the principal to be divided, after her decease, according to the will.

The household furniture and other articles above mentioned have been already divided among the children and grandchildren of the testator.

On March 1, 1822, Phinehas gave to the widow his bond, conditioned to furnish her with certain articles towards her maintenance, in lieu of the use of one half of the real estate of the testator devised to her; and on October 25, 1823, an agreement under seal was entered into by all the devisees except the plaintiff and John Ellis, and was assented to by the widow, in writing under her hand, in which agreement it was stipulated, that the personal estate in securities, which was left to the widow, should be placed in the hands of Phinehas Charles and Colburn Ellis, in trust, that the interest thereof or so much as might be necessary, in addition to the provision made in Phinehas’s bond, should be applied to the maintenance of the widow during her life, and the balance of interest accruing be divided annually between the parties to the agreement, and that, at the decease of the widow, the principal and interest, which should have accrued and not have been divided, should be divided between the parties to the agreement, in the same manner as it would have been distributed if the> testator had died intestate; and that the interest accruing during the life of the widow and not applied to her use, should he equal ly divided between the parties to the agreement, to the exclusion of such of the devisees as should refuse to execute the agreement. The securities, by the consent of Charles and Colburn Ellis, were placed in the hands of Phinehas, and he paid over the surplus interest annually, during tl e life of the *185widow, and with her consent, in equal proportions, to the sev • eral persons who had executed the agreement, to the exclusion of those who had not executed it, including the interest due on the securities at the time when they were delivered to the widow, amounting to $73-74 ; and he now holds the amount of the fund, being $2670-74, exclusive of the $73-74, and exclusive of $404-59 interest received, of which the sum of $ 102-03 was due at the decease of the widow ; amounting in the whole to $3149-07. All the securities delivered to the widow, except a note secured by mortgage for $ 720, were collected in her lifetime, or other securities taken, running to Phinehas. The abovementioned sum of $ 3149-07, after deducting therefrom a reasonable allowance to Phinehas for the funeral expenses of the widow and for taxes paid and other small charges, and also for his care and trouble in managing the fund, collecting the interest, &c., remains to be distributed according to law, having regard to the legal operation of the will and the other instruments in the case.

Before the commencement of the suit, the plaintiff made a demand upon the defendant; and if the plaintiff was entitled to recover any sum of money of the defendant by any legal process whatever, the defendant was to be defaulted, and judgment to be rendered for such sum as the Courts should direct.

*Nov. 5ih*1830.

The case was argued by *Metcalf,*for the plaintiff, and *Richardson,*for the defendant.

The opinion of the Court was drawn up subsequently by

Shaw C. J.

This appears to be a very plain case. If does not appear to us to involve the question discussed at the bar, namely, whether by law there can be a bequest of personal property to one for life," with a limitation over, though we do not mean to intimate a doubt upon that question. By the terms of this will the testator gives to his wife the use, profit and benefit of one half of his real and personal estate. These words are to be construed in reference to the subject matter. The *use*of furniture, plate, pictures and the like, may consist in the actual occupation, and to the use and enjoyment of such property, therefore, a delivery over to the legatee may be necessary. But the use and profit of money con*186sists in the interest and income. The whole of the property itself was given to the sons and daughters, one half of it payable on the settlement of his estate, and the other subject to the use thereof first given to his wife, and by necessary implication payable after the decease of .the wife. But both payments are'to be made by the executor, and therefore, by another necessary implication, where no other person is constituted trustee, the property must remain under the control of the executor, to enable him to invest the money, pay the income to the widow during her life, and then distribute the principal according to the directions of the will. *Saunderson*v. Stearns, 6 Mass. R. 37.

No question arises in this case as to the real estate or the furniture and other chattels of the testator. All these have been distributed since the decease of the life-tenant, in a man ner satisfactory to the parlies. The only question is in regard to one moiety of the cash balance of the testator’s personal property, in the hands of the executor, after the payment of debts and legacies and the settlement of the estate. This balance, though not distinctly stated, we understand to have been *0*2670.74, and that the *073.74*paid over to the widow was interest which had accumulated after the death of the testator and before «the payment to the widow. If this is not so, this balance must be set right by agreement or proof.

We lay entirely out of the case the bond given by Phinehas to the widow, on her conveyance of her interest in the real estate to him. It was a purchase by him, which he could rightfully make, and with which the plaintiff has no concern. The same may be said of the agreement of some of the legatees, made with the consent of the widow. So far as that agreement contemplated a distribution of a part of the income which belonged to the widow among themselves, it was a gift by the widow to them of her own property, which she had a right to make, and cannot affect the rights of the plaintiff, who was no party to it. So far as that agreement contemplated a distribution of the capital of the personal property, in equal shares, instead of the unequal proportions established by the will, it was a binding agreement among themselves, legally good by way of assignment of part of their shares, by those *187who had larger shares to those who had smaller, so as to produce an equality, but did not affect the rights of the plaintiff, for the reason already given, that he was no party to it.

The plaintiff is to recover in the same manner as if no such agreement or arrangement had been made, standing as he does, in all respects, unaffected thereby. He is entitled to two fifteenths of the net balance or residue of the testator’s personal property ; he is also entitled to the like proportion of the interest which has been received on the fund by the defendant since the death of the widow, upon the common principle, that when an executor or other trustee receives interest upon the trust money, he receives it to the use of the *cestui que trust*and shall account to him. But all the income received from the fund, from the decease of the testator to that of the widow, is the property of the widow, and the defendant must account to her or her personal representative for it. If it did not go to the other legatees, by force of the widow’s agreement, the defendant would be held to account to her executor or administrator for it; and therefore that circumstance could not affect the plaintiff’s rights. He can claim no part of the $73-74, because it was interest which accrued after the death of the testator and rightfully belonged to the widow ; nor of the $ 103, because, although it was in the defendant’s hands at the time of her decease, yet he held it for her use.

But on the other hand, the defendant has no right to charge upon this fund, any funeral charge, or other expenses paid on account of the widow. These charges must all be stricken out'; They are charges upon her estate and not on this fund ; and if the parties interested have preferred settling her estate without an administration, it cannot affect this fund.

In this commonwealth it has been held, that a trustee is entitled to a reasonable compensation for services. The defendant, in his capacity of executor, must have been paid a compensation for his services, in collecting in the assets of the estate, and the residue in his hands must be considered as the balance in cash. The charge therefore for collecting in the debts of the estate, is one of probate jurisdiction, and must be presumed to have been allowed on settlement of the estate, and as such therefore cannot be admissible here. But regard*188ing it as a charge for investing the money and keeping it at interest, during the life of the widow, and collecting it in after-wards, we can perceive no objection to it, nor to the rate of commission. We think also that a commission of 2§ per cent, upon the interest collected since the death of the widow, is a reasonable compensation, and ought to be allowed. The commission upon the interest collected and paid over to the widow, might have been a very just charge against her, but cannot be a charge upon this fund.1

1

 See *Dixon*v. *Homer,*2 Metc. 420; *Rathlun*v. *Colton,*15 Pick. 472, *Hayward*v. *Ellis,*13 Pick. 279.