C. Ames, and the income thereof is to be paid to her as hereinbefore provided.

"Fifth. At the said last mentioned date, the other threefourths parts of said estate are to be divided into six equal parts, one of which is to be for the benefit of each of said children. Of each of these parts, one-half is to be transferred absolutely by said trustees to each of my said children; the other half of each of these parts is to be held as hereinbefore provided by said trustees for the benefit of my said children, to each of whom the said trustees are to pay annually the net income of one-sixth part of this residue of my estate.

"Sixth. . . . At his [William Hadwen Ames] decease the property of my estate which is held in trust for him is to be distributed and disposed of among his children, if any, who are born after this date, and in such manner as he may direct by any instrument in the nature of a will signed by him in the presence of three witnesses. And if he shall have no children born after this date, then his said share of said trust property to be disposed of by him by such instrument and in such manner as he may see fit. And, failing any disposition by him as aforesaid, all his share of said trust property is to be added by said trustees to the shares of my other children in said trust property, to be held and disposed of, principal and income, as hereinbefore provided.'

"Ninth. At the decease of my wife, the said Anna C. Ames, the said trust fund held for her benefit as aforesaid is to be added to the trust funds of the said William H. Ames and the said Oakes Ames, one-half to each of said funds, and no part of the said trust fund held for the benefit of my wife, the said Anna C. Ames, is at any time to be transferred absolutely to the said William H. Ames or to the said Oakes Ames, but all of said trust fund is to be held in trust for them, after the decease of my wife, the said Anna C. Ames, on the same terms and conditions as those governing the trust which is to be created in their behalf in and after the year 1905."

The will of William Hadwen Ames commences as follows:

"I, William Hadwen Ames, of Easton, in the County of Bristol, in the Commonwealth of Massachusetts, being of full age and sound mind, do make, publish and declare this to be my last will and testament, and my instrument of appointment under the

power given to me by the will of my father, Oliver Ames, late of said Easton dated November 4, 1899 and the codicils to the same, and I declare that I intend by this will and instrument to dispose of all my property of every kind of which at my death I may be seized or possessed, or over which I may then have any power of disposition or disposal whatsoever, including the trust fund now held for my benefit by the Trustees of my father's estate, and the trust fund which is added to said trust fund by the death of my mother. Meaning and intending hereby to exercise all the powers of appointment and disposal given to me by the will of my father as above referred to, and I declare in connection herewith that I have no children born after the date of my father's will."

By the next eight clauses of that will, marked "First" to 'Eighth” therein, inclusive, the testator appointed the petitioners executors of said will and trustees thereunder and provided for certain pecuniary bequests. By the ninth clause of said will the testator provided:

"Ninth: Should my wife, Fanny Holt Ames, survive me I give, devise and bequeath to her as in this and the two following paragraphs, - All my real estate absolutely.

I give, devise and bequeath to my wife, Fanny Holt Ames, all the furnishings, furniture, works of art, silver, glass, china, books, jewelry, ware, personal effects, bric-a-brac, household goods, and everything of this nature in my houses, the one in Easton (North), and the one in Boston, No. 267 Commonwealth Avenue, and also all my carriages, automobiles, all the machinery in my factory on Oliver Street in said Easton (North) and all the personal property of every kind and nature in use on either of my said places in Easton (North) and in Boston.

After the payment of all preceding legacies and bequests in this will, I give and bequeath to my wife, Fanny Holt Ames, for and during her life, except as hereinafter provided, the net income of my estate to be paid to her quarterly or otherwise as convenient to the Executors and Trustees herein named, subject, however, to this condition, that in the event of her marriage, said income to her shall cease and in lieu thereof I give and bequeath to her Fifty Thousand (50,000) Dollars in cash or in securities and my remaining estate shall then be distributed as hereinafter provided."

By the eleventh clause of said will it was provided as follows:

"Eleventh: After the payment of all preceding legacies, bequests and devises under this will, I give, devise and bequeath all the rest, residue and remainder of my property, real, personal and mixed, including all the property over which I have power of appointment and disposal, as follows, namely:"

The testator then made provisions for his nephews and nieces, and in the event of the failure of certain lives, for the Massachusetts Institute of Technology.

Other material facts are described in the opinion. By order of the judge a decree was entered as follows: "There was no express direction in Oliver Ames' will for the trustees to sell the real estate in the trust; the authority to sell was for the purpose of changing investments; no intestacy would result if the real estate had not been converted into money; there was no necessity for changing the real estate into money for the purpose of division, however convenient it might have been; no clear intention can be implied from the language or general scope of the will to convert the realty into personalty, and nothing to take the case out of the general rule that the proceeds of the real estate sold by the trustees, must be treated as realty until the fund resulting from the sale reaches the one who is entitled to treat it as his own absolutely and for all purposes — in this case Fanny Holt Ames; there is no distinction in principle between the disposition of the proceeds of the share of real estate which William Hadwen Ames was entitled to have distributed to him in 1905, or which was to have been put into the trust fund for his benefit, or which came from Anna C. Ames' share of said real estate after her death; the ninth clause of William Hadwen Ames' will is in exercise of the power of appointment given him in the will of his father, Oliver Ames, and includes all real estate aforesaid, or the proceeds thereof in the possession of the trustees of Oliver Ames' estate, to which William Hadwen Ames was entitled or in which he was beneficially interested, and over which he had a power of appointment; the petitioners are therefor instructed that the funds resulting from the liquidation of said real estate received by them from the trustees under the will of Oliver Ames, the disposition as to which they are in doubt, belong to Fanny Holt Ames absolutely and should be paid over to her."

The defendants, with the exception of Fanny Holt Ames,

Massachusetts Institute of Technology, the Attorney General for the Commonwealth and Stanley P. Hall, next friend, appealed.

The case was argued at the bar in October, 1922, before Braley, Pierce, Carroll, & Jenney, JJ., and afterwards was submitted on briefs to all the Justices except Rugg, C.J. & Jenney, J.

D. F. Buckley, for the plaintiffs, stated the case.

B. E. Eames, (W. C. Rice with him,) for the appellants. S. P. Hall, next friend for issue unborn and unascertained. C. F. Choate, Jr., (H. Schnare with him,) for Fanny Holt Ames. CARROLL, J. This is a petition by the executors and trustees under the will of William Hadwen Ames, for instructions as to the disposition of the proceeds received from the recent sale of real estate in the estate of his father, Oliver Ames, who died testate October 22, 1895. Anna C. Ames, the widow of Oliver Ames, died March 11, 1917. William Hadwen Ames, whose will is before us for construction, died March 26, 1918.

By the will of Oliver Ames, dated November 4, 1889, his entire estate was left to trustees to pay the income of one fourth to his wife during her life and to hold the other three fourths for the benefit of his six children. In the year 1905 this three fourths was to be divided into six equal parts - one half of each part to be transferred absolutely to his respective children and the other half to be held by the trustees for their benefit, and the incomes therefrom paid respectively to each. By the sixth clause, William Hadwen Ames was given a special power of appointment if he had children born after the date of the will, and if not, a general power of appointment over his share of the property held in trust. He died leaving no children born after the date of his father's will. On the death of the widow of Oliver Ames the one fourth of the estate given to her was to be held by the trustees for the benefit of William Hadwen Ames and his brother Oakes Ames in trust, upon the same conditions "as those governing the trust which is to be created in their behalf in and after the year 1905."

In the possession of the trustees in 1905 was certain real estate, including a residence on Commonwealth Avenue, a stable on Newbury Street, both in Boston, and other lots of unproductive real estate. This property being unliquidated in 1905 and not susceptible of convenient division in specie into shares provided by the fifth clause of Oliver Ames's will, the trustees retained in

the trust and did not transfer in whole or in part the said real estate to his children. Said trustees have recently, however, before the filing of this petition, "been able to sell substantially all said real estate," and "have received therefor substantial sums of money," and have turned over to the petitioners that portion to which the said William Hadwen Ames would be entitled if he were living, and that portion over which he had the power of appointment under the will of Oliver Ames. They have turned over to the petitioners four sixteenths of the entire proceeds of said real estate, made up as follows: One half of one sixth of three fourths, equalling one sixteenth, which by the fifth clause should have been transferred outright to William Hadwen Ames. One half of one sixth of three quarters, equalling one sixteenth, which under the fifth clause of his father's will should have been added to the trust fund for William Hadwen Ames in 1905. One half of one fourth, equalling two sixteenths, which under the provisions of the ninth clause of said Oliver Ames's will should have been added to the trust fund on the death of Anna C. Ames, widow of Oliver, over which William Hadwen Ames had power of appointment.

When this will was before us in Ames v. Ames, 238 Mass. 270, it was decided that William Hadwen Ames, hereinafter called the testator, did by the ninth clause of his will exercise the power of appointment and appoint to his widow the income of the property owned by him outright and the income of the property held in trust under his father's will. We have now to decide whether the proceeds of the sale of the real estate coming from the estate of Oliver Ames should pass, to the widow of the testator under the ninth clause of his will giving to her "All my real estate absolutely," or under the eleventh clause by which the residue of his property was disposed of.

It appears from the first, second and third clauses of the will of Oliver Ames that down to 1905 the trust fund was to be dealt with as a whole, and all or part of it might be held in real estate, including by specific authority, such real estate as Oliver Ames owned at his death. By the fourth clause it is provided that in 1905, "for the said estate, separate accounts shall be established by said trustees," and one fourth set aside for the benefit of his widow. In our opinion, Oliver Ames intended by his will, that in 1905 the trustees should establish separate accounts and that