313 Mass. 33 | Mass. | 1943
Oliver Ames, late of Easton, by his will executed in 1889 left his entire estate in trust with the provision that in the year 1905, after setting apart one fourth of
“Eighth: — The income of the shares of my daughters in said property, or trust fund, in the year 1905 and after, is to be paid to said daughters severally, semi-annually, or as it accrues, during their natural lives, upon their sole and separate receipts, not by way of anticipation, and free from the control of any husband, and in no way subject to the debts of said husband. On the decease of each of my daughters said trustees are to pay over her share of the trust property to her children, if any, in such proportion as she may by any instrument signed by her in the presence of three witnesses direct; and in default of any such instrument they are to pay over and distribute the same, equally, among her children and grandchildren, if any, grandchildren to take the share which would have fallen to their parents, if alive. Provided, however; if any of my daughters shall thus die, leaving a husband surviving, she may by any instrument of the character above set forth, provide for an annuity to be paid to said husband during his natural life, to an amount not exceeding one third of her share of the income of said trust property. If either of my daughters shall decease, as aforesaid, not leaving children or grandchildren, then all her share of said trust property is by said trustees to be added to the shares of my other children in said trust property, to be held and disposed of, principal and income, as hereinbefore provided, for the holding and disposition of the shares of said other children; subject, however, to any provision made for a surviving husband to the extent and in the manner aforesaid.”
“First: In exercise of the power given me under Clause Eighth of the will of my father, Oliver Ames, late of Easton, Massachusetts, I hereby provide that an annuity shall be paid my husband, Frederick Garrison Hall, during his natural life to the amount of one-third of my share of the income of the trust property under my said father’s will, and I hereby direct the trustee or trustees under said will to pay to my said husband the said annuity.”
The decisive issues in the case relate to the method of putting into effect the “annuity” for the benefit of Frederick Garrison Hall. The judge entered a decree providing in substance that the trustees retain one third of the trust fund representing the share of Evelyn Ames Hall and pay the net income therefrom to Frederick Garrison Hall as his “annuity,” and that the trustees distribute the other two thirds of the trust fund among those upon whom have now devolved the several trust funds representing the shares of the other five children of Oliver Ames. The only question argued relating to the merits of the case is whether the judge rightly ordered partial distribution of the corpus with the retention of a sufficient sum to produce the “annuity” to Frederick Garrison Hall or whether he should have required the trustees to continue to hold in trust the entire fund representing Mrs. Hall’s share during the life of Frederick Garrison Hall in order that they might pay him the “annuity” of “one-third of . . . [Mrs. Hall’s] share of the income of the trust property.” In no other respect has the decree been attacked, except in relation to the incidental matter of counsel fees hereinafter mentioned.
In our opinion the decree on the merits was right. The main scheme of the eighth paragraph of Oliver Ames’s will is a trust of each “share” to pay the income to a daughter of the testator during the fife of the daughter, and “on
There is nothing in our decisions opposed to this result. Possibly this court has been less ready than some others to order trusts terminated when they were still in active operation. But we have not hesitated to order termination in whole or in part in proper instances. The only safe generalization is that termination in whole or in part has been ordered where such termination would best accomplish the testator’s intent, Inches v. Hill, 106 Mass. 575, 578; Sears v. Hardy, 120 Mass. 524, 541, 542; Sears v. Choate, 146 Mass. 395, 397, 398; Bartlett, petitioner, 163 Mass. 509, 513; Williams v. Thacher, 186 Mass. 293; Welch v. Episcopal Theological School, 189 Mass. 108, 109, and has been denied where it would tend to defeat that intent. Schaffer v. Wadsworth, 106 Mass. 19. Claflin v. Claflin, 149 Mass. 19. Young v. Snow, 167 Mass. 287. Forbes v. Snow, 245 Mass. 85, 93. Abbott v. Williams, 268 Mass. 275, 283. Weeks v. Pierce, 279 Mass. 108, 116. Damon v. Damon, 312 Mass. 268. Many of the cases are discussed in Springfield Safe Deposit & Trust Co. v. Friele, 304 Mass. 224. Scott on Trusts, §§ 337.8, 340.2. In the present case the decree fully protects the surviving husband, and a present distribution of so much of the fund as is not required for his protection will be in accordance with the testator’s general purpose that the trustees should distribute the fund “on the decease” of his daughter by adding it to the “shares” of his other children, “subject, however, to any provision made for a surviving husband to the extent and in the manner aforesaid.”
The respondent Frederick Garrison Hall objects to that
Decree affirmed.