221 Mass. 419 | Mass. | 1915
This is a suit in equity whereby the trustee in bankruptcy of Frank L. Lumbert seeks to obtain a conveyance of real estate devised for the benefit of the bankrupt by the will of his father, James M. Lumbert.
The only portion of the will disclosed on the record is the clause set forth in the footnote.
1 ' There is no allegation that the discretion vested in Orlando has been exercised in favor of Frank. Hence it does not appear that under the terms of the will anything has become, is now, or ever will be due to the bankrupt. There is no allegation in the bill that it ever has come to pass that payments to Frank would not be taken for his debts or that he has ever been out of debt. There is nothing to indicate that the discretion of the trustee has been abused or the trust perverted. Leverett v. Barnwell, 214
Since no right is conferred upon the bankrupt to any part of the principal or income of the trust fund until the discretion to transfer is exercised by Orlando, and since there is no allegation that such discretion has been so exercised, the plaintiff fails to show that he is entitled to relief. If the testator made no devise over of the beneficial interest in the real estate which was devised, to Orlando in trust, and for that reason some interest came to the bankrupt as an heir of his father, the plaintiff does not need the aid of a court of equity. The right of the bankrupt as to such property vested in him on the death of the testator and passed to his trustee on the adjudication.
The question whether the clause creates a spendthrift trust free from the control of creditors as to principal as well as income, and whether such a trust as to principal, if created, would be valid, somewhat discussed at the bar, does not arise in view of the construction of the only clause of the will now presented.
Affirmed.
The case was argued at the bar in October, 1914, before Rugg, C. J., Boring, Sheldon, Be Courey, & Crosby, JJ., and afterwards was submitted on briefs to all the justices constituting the court.
The bill was filed in the Supreme Judicial Court on February 2, 1914. The defendant demurred to the bill, and the case was heard by Be Courcy, J., who made an interlocutory decree sustaining the demurrer. Later by order of Hammond, J., a final decree was entered dismissing the bill. The plaintiff appealed from both decrees.
“All the rest and residue of my estate real and personal I devise and bequeath one half to my said son Orlando forever, and one half to him in trust for said Frank L. the same to be conveyed to said Frank L. or to others as
See Maryland Grange Agency v. Lee, 72 Md. 161; Wagner v. Wagner, 244 Ill. 101; Siegwarth’s estate, 226 Penn. St. 591; Kessner v. Phillips, 189 Mo. 515, 524. Also Shelton v. King, 229 U. S. 90; Broadway National Bank v. Adams, 133 Mass. 170; Young v. Snow, 167 Mass. 287; Dunn v. Dobson, 198 Mass. 142; Lathrop v. Merrill, 207 Mass. 6.