263 Mass. 114 | Mass. | 1928
In this petition for instructions, by the trustee under a declaration of trust dated August 30, 1919, the question to be decided is the authority of the surviving trustee to pay the whole or any part of the principal, free from any trust, to the Ufe tenant, M. Lindsay Reid, now Lindsay Clark Hearne.
The first paragraph of the declaration of trust provided that the trust “shall continue until the death of M. Lindsay Reid.” Under the third paragraph the income of the property “shall be payable quarterly or of tener if convenient to the said M. Lindsay Reid during her life.” Upon her death the trust was to end and “the property, including accrued income” was to be paid to her issue; in default of issue, to the grandchildren of M. Lindsay Baker. In this paragraph M. Lindsay Reid was prohibited from anticipating the income. Under the eighth clause of the fourth paragraph the trustees were directed to pay over the income “at such rates as they shall think fit, reserving all or such part of the income in any year as they shall deem proper as a contingent or sinking fund, or both, with the power to invest and reinvest the same, and thereafter to distribute all or any part thereof to the persons entitled thereto, or to pay out or divide from the capital of the property, or any part thereof, whenever they shall think fit.”
It is under this eighth clause of the fourth paragraph that it is contended that the surviving trustee should be instructed to distribute the principal of the trust fund.
The rights of the parties are to be determined by the language of the instrument taken as a whole and the circumstances in which the language was used. The intent of the settlor is to be found in the words of the declaration construed in the light of all the surrounding facts. Eustace v. Dickey, 240 Mass. 55, 72, 73. Springfield Safe Deposit & Trust Co. v. Dwelly, 219 Mass. 65.
The construction contended for by the life tenant and her mother is contrary to the meaning of the declaration of trust, and would deprive the remaindermen of their interests in the trust. Accordingly, the petitioner is instructed that to the first, second and fourth questions we answer No. As to the third question, it does not appear there is in the possession of the trustee any sinking or contingent fund, and we are not called upon to answer this question. As to the fifth question, no further instruction is necessary.
Decree accordingly.
Costs as between solicitor and client in the discretion of the single justice.