324 Mass. 648 | Mass. | 1949
This is,a petition for instructions by the trustees under the will of Mary Elizabeth Williams, late of Hopkinton. The case was heard in the Probate Court on a.statement of agreed facts and was reserved and reported to this court without decision. G. L. (Ter. Ed.) c. 215, § 13.
The assets in the hands of the trustees, though treated as one fund, are derived from the following sources: property owned by Mary Elizabeth Williams, property which came to her from her father, James Leeds, and personal property and Massachusetts real estate from the estate of her uncle Timothy C. Leeds over which James Leeds had exercised a general testamentary power of appointment. It is with respect to the appointed property from Timothy Leeds’s estate that the principal questions for decision have arisen.
Timothy Leeds died a resident of New York May 27, 1864. His will and codicil
By Timothy’s will James Leeds and Samuel E. Guild, both of Boston, were named trustees. James was also the executor. The will provided that in case of the death or resignation of either of the trustees the persons holding the majority interest of the trust could appoint a successor trustee "subject however to the approval of the person who shall then hold the office of Judge of Probate for the County of Suffolk” in the Commonwealth of Massachusetts. The executor’s inventory filed in the Surrogate’s Court in New York showed personal property in the amount of $384,700.52. The executor’s inventory filed in connection with the ancillary proceedings in Suffolk County disclosed Boston real estate valued at $50,000. The final account of James Leeds as executor and trustee of Timothy’s estate was settled by a decree of the Surrogate’s Court in New York on January 23, 1869. An accounting for the period October, 1868, to April, 1874, was filed in the Probate Court for Suffolk County.
James Leeds died March 22, 1875, a resident of Massachusetts, and his will and three codicils were allowed by the Probate Court for Suffolk County. The first codicil provided in part as follows: “I direct and appoint that the
At his death James was survived by the following persons: his widow, who died in 1916, his son Herbert, two daughters, Annie Fearing Boardman and Mary Elizabeth Williams, and two grandchildren, Edward Shirley Goddard and Mary Elizabeth Goddard, who were the children of Mary Elizabeth Williams and were born subsequent to the death of Timothy.
Mary Elizabeth Williams died a resident of Massachusetts February 10, 1925, leaving no spouse and survived by her children Edward Shirley and Mary Elizabeth Goddard. She left a will, the seventh article of which provides in part as follows: “My said daughter Mary E. Goddard, and my said son Edward Shirley Goddard, were both born prior to the decease of my father, James Leeds late of Boston, Massachusetts, under whose will I have a power of appointment. All the rest, residue and remainder of my property, of every name and nature, real and personal, and any property over which I have the power of appointment by will, or otherwise, I give, devise and bequeath to the trustees ... [blamed herein and their successors] but in trust nevertheless, for the following purposes, namely:” to divide the residue into two equal shares and to hold one for each child
During the Ufetime of Mary Elizabeth Goddard the income of her share of the trust created by the seventh article of her mother’s will was paid to her and she also received payments out of principal amounting to $7,000. She died a resident of Boston, May 16, 1940, without issue, leaving a will and codicil.
The trustees under the will of Mary Elizabeth Williams paid one half of the income of the trust to Edward Shirley Goddard until the death of Mary Elizabeth Goddard, and thereafter, until September 30, 1947, he received the entire income thereof. Since that date he has received one half of the income and the remaining income has been held by the trustees pending the outcome of the present proceeding. The trustees have paid to Edward, who is still living, sums out of principal amounting to $10,000.
1. As stated above, Timothy’s property over which James and Mary Elizabeth Williams had powers of appointments comprised real estate situated in Massachusetts, and personal property. Questions relating to the validity and effect of the power contained in his will and questions arising out of the exercise of the power, in so far as they concern real estate, must be determined by the law where the real estate is situated. Restatement: Conflict of Laws, §§ 234, 235, 236. Beale, Conflict of Laws, §§ 234.1, 235.1. Sewall v. Wilmer, 132 Mass. 131, 138. Russell v. Joys, 227 Mass. 263, 267. Ligget v. Fidelity & Columbia Trust Co. 274 Ky. 387. Lawrence’s Estate, 136 Pa. 354. No contention is made to the contrary. Thus the question whether the exercise of the power created interests in the real estate which are remote under the rule against perpetuities is to be governed by the law of this Commonwealth rather than by the law of Timothy’s domicil, New York. Bundy v. United States Trust Co. 257 Mass. 72, 79. By § 42 of the real property law of New York (N. Y. Consol. Laws, c. 52) limitations extending beyond two lives in being are remote, whereas in Massachusetts the common law rule prevails.
Under the common law rule the interests which Mary Elizabeth Williams attempted to create after the life estates to her children Edward Shirley and Mary Elizabeth Goddard are remote. It is settled in this Commonwealth that “the remoteness of an appointment, made in the exercise of a power to appoint by will alone, so far as affected by the rule
We pass now to the question of what disposition is to be made of that percentage of the fund derived from Timothy’s real estate which Mary Elizabeth Williams did not properly appoint. The situation is one, we think, where the principle of capture becomes applicable. That principle is that “where the donee of a general power attempts to make an appointment that fails, but where, nevertheless, the donee has manifested an intent wholly to withdraw the appointive property from the operation of the instrument creating the power for all purposes and not merely for the purposes of the invalid appointment, the attempted appointment will commonly be effective to the extent of causing the appointive property to be taken out of the original instrument and to become in effect part of the estate of the donee of the power.” Fiduciary Trust Co. v. Mishou, 321 Mass. 615, 624. Other cases applying this principle are Dunbar
2. With respect to that portion of the fund derived from Timothy’s estate which was personal property, questions of considerable difficulty are presented. At the outset it is necessary to decide what law is to govern. Ordinarily in the case of personal property questions as to both form and substance relating to the validity and effect of an instrument exercising a power of appointment created by will are determined by the law of the domicil of the donor of the power. Sewall v. Wilmer, 132 Mass. 131, 136-137. Walker v. Treasurer & Receiver General, 221 Mass. 600, 603. Bundy v. United States Trust Co. 257 Mass. 72, 79. Hogarth-Swann v. Weed, 274 Mass. 125. Boston Safe Deposit & Trust Co. v. Prindle, 290 Mass. 577, 581. Pitman v. Pitman, 314 Mass. 465, 470. See Gray, Rule against Perpetuities (4th ed.) § 540.2. We are concerned here not with the validity of the instrument exercising the power or whether the power was exercised but rather with the nature and extent of the interests resulting from its exercise. Whether the principle just stated is applicable here is of importance not only as to whether the New York
In the case at bar there are several factors which shed light on the intent of Timothy, the testator-donor. The trustees both were residents of Massachusetts. One of them, James, was the donee of the power. A substantial portion of the property consisted of real estate situated here. Timothy’s will provided that the appointment of successor trustees was to be "subject ... to the approval of the . . . Judge of Probate for the County of Suffolk” in the Commonwealth of Massachusetts. We think it plain that he intended the trust to be administered here, as in fact it was. See Restatement: Conflict of Laws, § 298. The trust, therefore, would be administered according to the law of this Commonwealth. Restatement: Conflict of Laws, § 299. See Sewall v. Wilmer, 132 Mass. 131, 137; Codman v. Krell, 152 Mass. 214; Greenough v. Osgood, 235 Mass. 235. It is reasonable to infer that Timothy contemplated that the power given to James would be exercised here. Timothy manifested an intention not only that the trust be administered here and according to our law but also that that law should determine the extent and nature of the interests created by the exercise of the power created by his will.
An analogy furnishing support for the conclusion here reached may be found in cases dealing with testamentary trusts. Ordinarily the validity of a testamentary trust of personal property is determined by the law of the testator’s domicil at the time of his death. Fellows v. Miner, 119 Mass. 541. McCurdy v. McCallum, 186 Mass. 464, 468. Restatement: Conflict of Laws, § 295. Beale, Conflict of Laws, § 295.1. But this principle has not been applied invariably. Thus where testamentary trusts of personal property were
3. The charities, as noted above, advance the argument that none of the property appointed by Mary Elizabeth Williams is derived from property of Timothy. They invoke
4. It becomes necessary to determine what proportion of the fund in question can be considered as having come from Timothy’s estate. The respondents are not in agreement on this question. The following is stated in the stipu
Property of —
Mary E. Williams........16%
James Leeds.........31%
Timothy C. Leeds
Real Estate.........6%
Personal Property.......47%
100%”
The stipulation then states that "With regard to the foregoing computation the parties hereto admit only . . . [its] mathematical correctness . . . and do not admit that the method followed in making . . . [it] is correct as a matter of law.” Some of the respondents urge that the appointive property ought to be determined on the basis of the foregoing percentages. Others, especially the charities, contend that these percentages are improper and suggest different ones.
No better method appears to be available. The percentages contained in the stipulation apparently were not established in that manner and on this record we are in no position to make the computation. The case, therefore, should be remanded to the Probate Court in order that the proportions be established by the method just outlined. In determining these proportions the debts, expenses and legacies ought to be chargeable against each fund on a pro rata basis. Fiduciary Trust Co. v. Mishou, 321 Mass. 615, 633. For the reasons set forth in the Mishou case there is no occasion here to apply the principle of exoneration illustrated by Tuell v. Hurley, 206 Mass. 65. The debts, expenses and legacies of Mary Elizabeth Williams ought also to be charged against each fund on a pro rata basis in computing the amount of appointive property in her estate.
5. Finally it has been argued that the payments of principal to Mary Elizabeth and Edward Shirley Goddard amounting in all to $17,000 should be treated as having been paid out of property other than that derived from Timothy’s estate under the doctrine of allocation. But we are of opinion that that doctrine is not applicable. It is true, of course, that as to Timothy’s property the limitations as to these payments were remote because measured from the creation of Timothy’s power they might take effect more than twenty-one years after the death of Mary Elizabeth Williams, the last life in being. But in the view that we take of the case allocation is not necessary to save the payments.
The case is remanded to the Probate Court for further proceedings in conformity with this opinion and the trustees are to be instructed in accordance therewith. Costs and expenses of appeal are to be in the discretion of the Probate Court.
So ordered.
The codicil is not material to any of the questions presented for decision.
The record states, “incidental account [was] filed in King's County, New York, as final accounting in that State.”
Article Second of her will contained a recital to the effect that she understood that her mother, Mary Elizabeth Williams, had “a power and/or powers to dispose of certain property under the will of Timothy C. Leeds . . . and under the will of James Leeds . . . and [had] exercised the same under the Seventh Article of her will”; that it had been stated to her that there was some doubt as to the validity of the gifts over to the charitable corporations named in that article; and that she desired to carry out the provisions of that article as far as she -was able after the decease of her brother Edward Shirley Goddard. She then went on to provide that “any and all property comprising the Timothy O. Leeds or James Leeds Funds, so called” which she had the right to appoint or dispose of whether it came to her or she had such right “under the will of Timothy C. Leeds and/or the will of James Leeds and/or the will of . . . [her] mother . . . Mary Elizabeth Williams” was to be held in trust to pay the income to Edward Shirley Goddard during his life and at his death to distribute the fund in equal shares to Rotch’s Travelling Scholarship, the Massachusetts Society for the Prevention of Cruelty to Animals, and the Animal Rescue League.
No contention is made by any of the respondents that any of the limitations in the will of Mary Elizabeth Williams are invalid with respect to property owned outright by James or herself.
See Personal Property Law, N. Y. Consol. Laws, c. 45, § 11. In New York, as in Massachusetts, for the purpose of applying the rule against perpetuities an appointment is measured from the time when the power is created. Fargo v. Squiers, 154 N. Y. 250, 259. Low v. Bankers Trust Co. 270 N. Y. 143, 148.
Whether the doctrine of capture, as applied in this Commonwealth, obtains in New York is not clear. We have found no case decided by the Court of Appeals in which the doctrine has been expressly adopted or repudiated. In one case (Matter of Beaumont, 147 Misc. [N. Y.] 118) the court cites with apparent approval decisions in other jurisdictions which recognize the principle but it does not appear to have applied it. There are decisions, however, where the facts would seem to be such as would afford an opportunity for applying the doctrine but the court did not do so. See Matter of Hayman, 134 Misc. (N. Y) 803; In re Hellinger’s Estate, 83 N. Y. Sup. (2d) 10; In re Lathers’ Will, 64 N. Y. Sup. (2d) 757; Guaranty Trust Co. v. New York Trust Co. 297 N. Y. 45. In none of these cases, however, was the doctrine discussed.
The suggested percentages are:
Property of —
Mary Elizabeth Williams ..... 22.911%
James Leeds ....... 40.812%
Timothy C. Leeds ...... 36.277%