Ames v. Ames

244 Mass. 381 | Mass. | 1923

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 they should go on administering the trust as before that time, except for the division of it into the parts designated. They were not required to wind up the trust, and as to the second trust, they had the same power of investment and reinvestment as they had over the first trust, and were entitled to carry the property of the first trust over into the second trust. There was nothing in the nature of a mandatory direction calling for the sale of the real estate. Authority was given the trustees under the will of Oliver Ames to “sell, invest and reinvest the said estate in real and personal estate,” and the provision in the third clause of the second codicil of the will of Oliver Ames provided, “I direct my said executors and trustees to pay my debts as soon as convenient after my decease, and to that end, believing it to be for the best interests of all my heirs, I advise and request that my homestead estate, situate on the corner of Commonwealth and Massachusetts Avenues, in said Boston, be sold as soon as a reasonable and fair price therefor can be obtained.” The words “request” and “advise” would indicate that the power conferred was discretionary. See Heard v. Read, 171 Mass. 374; Cronan v. Adams, 189 Mass. 190. See also Welch v. Howard, 227 Mass. 242. The real estate held by the trustees under the trust and the real estate which should have been transferred in 1905 to the testator, is to be regarded as such, and not as personal property under the theory of equitable conversion. Hovey v. Dary, 154 Mass. 7. Gray v. Whittemore, 192 Mass. 367. In 1905 the property mentioned in the codicil just referred to, with the other unproductive real estate owned by Oliver Ames at his death, was held by the trustees without division or transfer in whole or in part among his children. This real estate belonging to the trust stood subject to the rights of the beneficiaries under his will, in accordance with the limitations prescribed. Each child, including William Hadwen Ames, was entitled to have it turned into the trust fund held for his benefit, and the widow of Oliver Ames was entitled to one fourth of the fund held for her benefit.

As to the one sixteenth to which the testator was entitled in 1905 under the terms of his father’s will, this part was to be “transferred absolutely” to the testator by the trustees; and while the trustees transferred to the testator and the other children of Oliver Ames substantially the share each was to receive, the real estate in question was retained and not divided. His share in this real estate should have been transferred outright to the testator. The trustees were not under a mandatory authority to dispose of it before turning it over to him. He had a complete equitable estate in fee simple in this property, subject only to the trustees’ power of sale. It was, therefore, an equitable interest which he could devise. See Newhall v. Wheeler, 7 Mass. 189; Reardon v. Reardon, 192 Mass. 448; Daly v. Gaskins, 240 Mass. 260.

In the first paragraph of the ninth clause of the testator’s will, “All my real estate absolutely” was given to his wife. He intended in this paragraph to devise to his wife all the real estate to which he had the legal title, and also the real estate which in 1905 should have been turned over to him outright by the trustees. The fact that in the succeeding paragraph of the ninth clause reference is made to certain personal property in his houses at North Easton and Boston, his carriages, automobiles and machinery in his factory, and that these things are given his wife, does not limit the absolute devise to her of all the real estate. The part of the real estate we are considering, which belonged to him under his father’s will, was a part of his real estate which he intended in this clause of_his will to devise to his wife; and we find nothing in the will indicating that he had in mind, in making this devise, merely the real estate to which he had the legal title. All his real estate was included, and the will, taken as a whole, does not disclose a contrary intention. The petitioners are instructed that the proceeds of the sale of the real estate which should have been transferred to the testator in 1905 under the will of his father, belongs to his widow under the ninth clause of her husband’s will.

The question remains as to the one sixteenth which under the will of the father of the testator should have been added to the trust fund for his benefit, and the two sixteenths which on the death of his mother should have been added to this fund. In the ninth clause of the.testator’s will, in addition to the devise of his real estate absolutely, he provided that the net income of his estate, “except as hereinafter provided,” was to be paid to his wife for her life; but in the event of her marriage, in lieu of the income, she was to be paid $50,000. In the eleventh clause of his will he devises and bequeaths “ 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.” The proceeds of this part of the real estate were a part.of the fund to be held by the trustees during the life of the testator, and he had over this property and its proceeds, merely the power of appointment. He could dispose of it, because authorized by the will of his father. He did not own it in the true sense of the term. It was not, strictly speaking, his real estate, but he could, as his father’s will directed, dispose of it “by any instrument in the nature of a will signed by him in the presence of three witnesses.” Clapp v. Ingraham, 126 Mass. 200. Shattuck v. Burrage, 229 Mass. 448. This reference in the eleventh clause of the will to the power of appointment and his power of disposal, indicates that he had in mind in making said clause all the remaining property in the trust, both real and personal, including the real estate in question. By such allusion to the power of appointment and disposal, he distinguishes this part of his real estate from the real estate owned in fee by him, which was referred to in the ninth clause. Under the ninth clause he did not dispose of any real estate except his own. He did not deal with the real estate held in trust except so far as the income was disposed of, and he did not otherwise in this clause of his will exercise the power of appointment.

The rule that a general devise may constitute an exercise of a power of appointment, Amory v. Meredith, 7 Allen, 397, is limited to cases where there is nothing in the will to show a contrary intention. Thompson v. Pew, 214 Mass. 520. Stone v. Forbes, 189 Mass. 163. In the last mentioned case it was said at page 168, “in regard to special as well as in regard to general powers, the question is one of intention on the part of the donee of the power.” We think that the testator intended that this portion of the total proceeds of the sale of the real estate over which he had the power of appointment, was to be retained by the petitioners, subject to the right of the testator’s widow in the income thereof, and on her decease or marriage it is to be disposed of under the eleventh clause of his will to the residuary legatees and devisees.

The decree of the Probate Court must be modified and a decree entered instructing the petitioners that the one sixteenth of the proceeds of the real estate which belonged to the testator outright, passed under the ninth clause of his will and belongs to his widow absolutely. The three sixteenths passed under the eleventh clause, subject to the right of the testator’s widow to the income; and so modified the decree is affirmed. Costs as between solicitor and client to be taxed on the fund in the discretion of the judge of probate.

So ordered.