Page:Federal Reporter, 1st Series, Volume 1.djvu/152

 144 FBDEEAL BEPOBTEB. �The demurrer raised the question whether an action at law could be maintained upon the agreement and supplement. �C. W. Clifford, for plaintiff. �T. M. Stetson, for defendants. �LowELL, J. This case reverses the usual relative positions of law and equity. It is brought at law because the remedy in equity has been found inconvenient. �I have no donbt that there is power somewhere to settle the plaintiff's income at some time before her death, which will at once relieve her from occasion for income, and ascertain who are the remainder-men ; nor have I any belief that the supreme judicial court intended, by their intimation in Green v. Gordon, 113 Mass. 259, to require impossibilities. �I do not, however, understand that, by the settlement, the trustees promised to pay over the value of the earnings, so that they can be charged as assumpsit or trover with that value. They agreed to account as trustees; that is to say, in a court of equity, where questions of part performance, com- pensation to the trustees, costs, interest on what they should have paid, etc., can be determined and adjusted with a due regard to the equitable rights of ail parties. Their agreement is that they will, "under the provisions of the trust, account;" and by reference to these provisions it will be found that they have a discretion as to times of payment. I do not, of courge, mean to say that they could withhold it for years ; but they may exercise a discretion on the subject. In short, I look upon the agreement as a sort of codicil, settling how the cor- pus of the trust should be ascertained; varying, perhaps, the rights of the parties, but not the remedy for a breach of trust, and not intended to impose a personal legal obligation to pay, instead of an equitable duty to account. �Demurrer sustained. ��� �