286 Mass. 497 | Mass. | 1934
This is a petition by the trustees under the will of Thomas F. Cronan, late of Salem, for instructions as to their powers and duties under the will of the testator. The beneficiaries under the will are the parties respondent. It is alleged in the petition that the testator died on March 3, 1923, leaving a will under which the petitioners were appointed trustees in May, 1923. The trust property consists, in part at least, of houses and real estate. The provision of the will as to which instructions are sought is of the tenor following: “I want the executors not to dispose of any of my property for ten years. If at the end of that time the executors wish to dispose of any of the property and can do so to a good advantage it is my wish that they do so. I wish to state that all my property at the end of ten years shall be divided into twelve twelfths, and if any of these that I mention should pass away before the expiration of the ten years their share shall go to their children if they have any and if not, it shall go to the remaining heirs. Now I shall name the heirs.” Then follows a list of the heirs with a statement of the twelfths to be
Only the questions of law apparent upon the record are presented for consideration. G. L. (Ter. Ed.) c. 215, § 13. Thompson v. Barry, 184 Mass. 429, 431. The trustees have a right to request instructions concerning their immediate and present duties, but not as to those which may arise in the future. Bullard v. Chandler, 149 Mass. 532, 537, 538. Parkhurst v. Ginn, 228 Mass. 159, 171-172. Old Colony Trust Co. v. Treasurer & Receiver General, 243 Mass. 543, 547. Boyden v. Stevens, 285 Mass. 176, 180.
Some of the beneficiaries contend that the trustees are under a present duty under the terms of the will, regardless of the condition of the real estate market, to sell and dis
The testamentary directions as to the termination of the trust are not clear. The will was not drawn with the care of a competent draftsman. The rule of interpretation is that the intent of the testator must be gathered from the entire will, attributing due weight to all its words and assuming that the different provisions were intended to be harmonious with each other, and then that intent must be given effect unless contrary to some positive rule of law. Ware v. Minot, 202 Mass. 512, 516. Shattuck v. Balcom, 170 Mass. 245, 251. Sewall v. Elder, 279 Mass. 473, 476-477. Sherwin v. Smith, 282 Mass. 306, 310. O’Reilly v. Irving, 284 Mass. 522.
In the paragraph of the will now under inquiry there is no ambiguity about the direction that none of the trust property shall be sold for a period of ten years. That is certain. What is to be done with the trust property after the expiration of that decade is expressed in the two sentences following that positive direction. The first of these confers power upon the trustees to sell the trust property provided they wish to do so and ascertain that they can sell it to “a good advantage”; the second of these sentences contains these words: "I wish to state that all my property at the end of ten years shall be divided into twelve twelfths . . . . ” The first of these two sentences standing by itself is positive to the effect that there must be compliance with two conditions before the power of sale is exercised; one, that the trustees "wish to dispose of” any of the property, and the other, that it can be sold “to a good advantage.” These two are so closely combined that they can hardly be separated. It would be most unusual to vest in the trustees an untrammeled judgment, independent of any other element save their own desire, to determine within limits allowed by law the time of the termination of the trusts. Corkery v. Dorsey, 223 Mass. 97. Such a testamentary purpose is not to be inferred from the words here used. At most they confer a somewhat flexible but wise discre
It is not practicable to give a categorical answer to the several requests for instructions. It is enough to say, in answer to all of them, that the trust doe,s not terminate at the expiration of ten years, that the present duty and power of the trustees are to hold the'trust real estate until it can be sold “to a good advantage” under fairly settled market conditions, and then to exercise sound judgment in bringing the trust to an end by sale and distribution of the property. .
Ordered accordingly.