321 Mass. 115 | Mass. | 1947
J. The petitioner, who is the executrix of the will of Luman J. Beede, brings this petition praying that her testator be declared to have become sober and industrious at a time before his death, and that an order be entered setting over the principal of the trust fund (hereinafter described) created under the will of Abbie S. Beede to the estate of her testator or to her. Demurrers, pleas in bar and pleas in abatement were filed by the respondent trustees under the will of Abbie S. Beede, and by the other respondent, Everett J. Beede. The judge entered interlocutory decrees sustaining the demurrers and pleas, and a final decree dismissing the petition. From these decrees the petitioner appealed.
The material allegations of the petition are as follows: The petitioner's testator, Luman J. Beede, was the son of Abbie S. Beede. He died on January 31, 1945. The petitioner is his widow and the executrix of his will. He was the beneficiary of a trust created by his mother by her will, the terms of which are as follows: "The balance of my said estate to the Old Colony Trust Company of Boston and Dr. Norman M. Hunter of Hudson, in trust for the follow
A consideration of the pleas in bar, the facts alleged in which were found by the judge to be true, will dispose of the case. The facts so found to be true may be summed up as follows: Abbie S. Beede died on September 16, 1922. Her will, the pertinent provisions of which have been recited above, was allowed on October 11, 1922, and the respondent trustees named therein duly qualified on November 22, 1922. On June 7, 1932, the trustees, having filed a petition for instructions concerning their duties, filed a petition for leave to compromise, in accordance with the terms of a written agreement dated April 28, 1932, certain controversies relating to the rights and benefits of Luman J. Beede under the trust created by Abbie, his mother, in her will. The petition was filed under the provisions of G. L. (Ter.. Ed.) c. 204, § 14. Guardians a,d litem "or” next friends were appointed to represent minors and persons unborn or unascertained. Under the terms of the agreement, provisions were made for the transfer of $12,800 from the principal of the trust fund and disbursement thereof in behalf of Luman, for the payment after May 3, 1932, of fifty per cent of the income to Luman, and for the transfer to principal of the remaining fifty per cent of income. Other provisions concerning this matter need not be recited. The agreement further provided as follows: "4. The trustees and the said E. Jefts Beede, stipulate, as an essential part of the consideration for the compromise embodied in this agreement, that any and all payments from the said trust to the said Luman J. Beede, whether of income or principal, are to be made to him only upon receipts signed by him, or by check payable to him, except with respect to the payments of
The contentions of the petitioner are, in substance, that under the terms of the will, rightly construed in the light of the provisions of the codicil thereto, Luman became entitled to the principal of the trust fund when he became forty years of age; that the terms must be carried out unless repugnant to law; that the Probate Court was without authority to enter the decrees allowing the agreements of compromise because their terms were inconsistent with those of the will; that the terms of the trust were such that Luman could not by contract properly obtain, as he did, portions of the principal of the trust fund to be disbursed in his behalf; that he could not as matter of law by contract agree that payments to be made to him under the agreement of 1932 should be free from the interference or control of his creditors; and that the Probate Court erred in entering the decree denying Luman’s petition for revocation of the decree dated June 13, 1932, allowing the compromise agreement dated April 28, 1932.
The petitioner’s contention that the present proceeding is not as to the respondent trustees an adversary one, that they are mere stakeholders and as such cannot be heard, is not sustained. This proceeding is not one brought by the trustees for instructions but is one brought by the petitioner who seeks to set aside the contracts entered into by the trustees with all parties interested in the trust estate, with the approval of a court of competent jurisdiction. It is the duty of the trustees to carry out those contracts in accordance with their terms, and they have a right to be heard in the present proceeding. See Ripley v. Brown, 218 Mass. 33, 35; Doane v. Bigelow, 293 Mass. 406, 409; McKay v. Audubon Society, Inc. 318 Mass. 482, 485.
In view of what we have said above it is unnecessary to consider the demurrers and pleas in abatement of the respondents.
The request of the petitioner for costs and expenses of this appeal is not granted.
Appeals from interlocutory decrees sustaining demurrers and pleas m abatement dismissed.
Interlocutory decrees sustaining pleas in bar affirmed.
Final decree affirmed.