Estate of Benziger

[629]

DRAPEAU, J. pro tem.

In a will before the probate court, and now before this court, the testator directed that the residue of his estate be converted into cash and the cash used to purchase insurance contracts or policies in level premium mutual life insurance companies, to pay a life income to the two children of testator. The will further directed that such contracts were to be so drawn that upon the death of either child, the balance of the proceeds thereof should go to the living issue of such child, or if such child died without living issue, to the survivor of said two children, or the then living issue of such surviving child, or in the event of the death of both of testator’s children without issue surviving, to a Catholic charity. For these purposes, one-fifth of the residue was to be expended for one child, and four-fifths of the residue for the other child.

Pursuant to this direction, the executor, respondent herein, petitioned the probate court for an order directing the sale of personal property of the estate, consisting in the main of stocks and bonds.

The beneficiary for whom four-fifths of the residue was to be so expended filed written objections denying that the sale of the property would be for the best interest of the estate or those interested therein, and denying also the power of the executor to sell the property for the purpose of purchasing the contracts as directed by the will. Said beneficiary also filed a notice of election to take securities in lieu of annuity. The beneficiary for whom one-fifth of the residue was to be invested, as directed by the will, did not appear, nor did anyone appear for contingent beneficiaries, unless the objector may be said to have so appeared as their representative.

Upon the hearing, the probate court made its order directing the sale. From this order the objector has appealed.

The primary question here involved is whether the appellant had the right to elect, and to have distributed from the estate of decedent to trustees, for the use and benefit of appellant and contingent beneficiaries, the personal property which the testator directed to be sold and invested in contracts of annuity and insurance.

Income presently to be derived from the stocks and bonds if so distributed would be greatly in excess of income which could be paid under the insurance contracts. And a compu