315 Mass. 97 | Mass. | 1943
By agreement in the Superior Court the sole issue in this case is whether the defendant as trustee under an indenture of trust dated June 20, 1924, between Mary A. Guild and the defendant rightly paid to Ralph Greenleaf and to W. R. Greenleaf the sum of $500 to each mentioned in paragraph (9) of the indenture. The plaintiffs are the executors of the will of the residuary remainderman under the indenture and will be entitled to an additional $1,000, if the two sums of $500 were wrongly paid.
By the indenture Mary A. Guild transferred certain securities and property to the defendant in trust to make certain payments to Mary A. Guild and to Mary S. Page during the lifetime of the former. The indenture then provided in paragraph (5) that upon the death of Mary A. Guild the defendant should pay to Mary S. Page $100 a month during her lifetime and directed the defendant to set aside and to hold in trust such portion of the trust property as the defendant should deem sufficient to make these payments, and upon the death of Mary S. Page “to dispose thereof and of the balance of the trust property if any remaining after the payments herein in paragraphs (6) and (9) inclusive provided for have been made in accordance with paragraphs (10) and (11) hereof.” Paragraph (6) provided in seven subparagraphs lettered respectively from “(a)” to “(g)” for the payment of seven specified sums of money aggregating $11,500 to seven named persons. Paragraph (7) provided that if the balance of the trust property should be more than sufficient to make “the seven (7) foregoing payments in full, the following payments . . . [should] be made: . . . .” Then follow five subparagraphs lettered respectively “ (h) ” to “ (1) ” providing for five payments aggregating $5,000 to five named persons. Paragraph (8) provided that if the balance of the trust property should be sufficient to make the payments in subparagraphs “(h)” to “(1)” (of paragraph [7]), the sum of $500 should be paid to each of eight persons named in eight additional subparagraphs lettered “ (m) ” to “ (t) ”. Then came paragraph (9) with
Mary A. Guild, the settlor of the trust, died on February 1, 1927. The trust property then amounted to $46,866.18. In accordance with paragraph (5) the trustee then set apart the sum of $30,181.79 for the purpose of maintaining the payments of $100 a month to Mary S. Page. The balance of the trust property then available was sufficient to pay in full the sums designated in the lettered subparagraphs of paragraphs (6) and (7), being those lettered (a) to (1) inclusive, and the defendant paid these sums. The remaining balance was insufficient to pay in full the sums designated in the lettered subparagraphs (m) to (t) inclusive of paragraph (8), and each of these sums abated pro rata. Nothing then remained with which to pay the two gifts to the Green-leaf s under paragraph (9). But upon the death of Mary S. Page on February 15, 1938, the sum set apart to pay her annuity became available for distribution, and the defend
The difficulty arises out of a conflict or a discrepancy between paragraph (5) and subparagraph (a) of paragraph (11) in that paragraph (5) directs the defendant as trustee, upon the death of Mary S. Page, to dispose of the balance of the trust property remaining "after the payments” mentioned "in paragraphs (6) and (9) inclusive” “in accordance with paragraphs (10) and (11),” while subparagraph (a) of paragraph (11) calls for a distribution which wbuld secure payment of all the previously unpaid amounts of the gifts in the lettered subparagraphs of paragraphs (6) to (8) inclusive and would then permit the payment of the new and subordinated gifts designated for the first time in paragraph (11) without first paying the previously designated unlettered gifts to the Greenleafs in paragraph (9). Either there was a mistake in mentioning paragraph (9) in paragraph (5) or there was a mistake in failing to mention paragraph (9) in subparagraph (a) of paragraph (11) in referring to the previous gifts. The difficulty is apparent on the face of the indenture. No help is available from extrinsic sources.
We think that the express mention of paragraph (9) in paragraph (5) outweighs, as an indication of the settlor’s intent, her failure to mention paragraph (9) in subparagraph (a) of paragraph (11). See Taylor v. Albree, 309 Mass. 248, 253. In reaching this conclusion we are greatly assisted by a view of the general scheme and structure of the trust as a whole. In addition to providing for herself and Mary S. Page, the settlor apparently intended to make specific gifts of varying amounts to twenty-nine different persons and charities before giving the residue to the plaintiffs’ testator. She grouped these gifts into six separate groups. The gen
Paragraph (5), when considered in the light of the scheme of the instrument as a whole, is sufficient to save the Green-leaf gifts. See Fitts v. Powell, 307 Mass. 449, 454; Poor v. Hodge, 311 Mass. 312, 315-316.
The judge rightly ruled that the bill should be dismissed.
Bill dismissed with costs,