255 Mass. 214 | Mass. | 1926
This is an appeal from a decision of the Probate Court for the county of Middlesex, upon a petition filed under G. L. c. 203, §§ 26-39 inclusive, prajung under § 27 that the petitioner be ordered to transfer a trust fund “to those persons as trustees who would be entitled thereto if” one Henry J. Zwinge, an absentee beneficiary, “had died
The absentee disappeared in January, 1907. Such disappearance has been continuous for more than fourteen years last preceding the filing of the petition; and he has not been heard from or known of within such fourteen years. No question is raised as to a compliance with all the requirements of the statute regarding notice and other steps designed for the protection of the possible rights of the absentee. Nor is it disputed that the facts warrant a presumption of his death.
The pertinent facts other than as above stated are as follows: Eliza T. McGinness died about January 1, 191Í, leaving a will which was duly proved and allowed in the Probate Court. The will created a trust fund to be held by the petitioner and the income paid over to specified nieces and nephews of the testatrix, including the absentee, until the youngest attained the age of twenty-one years, when the trust should terminate and the fund be paid over equally to the named beneficiaries then living, the issue of any deceased beneficiary to take by right of representation. The youngest beneficiary, Arthur L. Zwinge, attained the age of twenty-one years on November 9, 1918. The beneficiaries then entitled to receive the trust fund were the absentee, if living, his sister Eva Zwinge Giblin, and his brothers, Arthur L. Zwinge and Albert Basil Zwinge, children of a deceased nephew of the testatrix, and Conrad J. Zwinge, child of another nephew of the testatrix, under whom the appellant claims. On the coming of age of Arthur L. Zwinge, the petitioner set aside one fifth of the fund as the absentee’s share, and has continued to hold it as trustee. The remaining four fifths of the fund he distributed under the terms of
The judge of probate, having before him no evidence beyond that of the mere fact of the absentee’s disappearance in 1907, assumed his death to have occurred on the day fourteen years after his disappearance, and ordered distribution of the remaining fund in equal shares to the absentee’s sister and two brothers, as being property left by the absentee upon his death intestate, they giving bonds as required by G. L. c. 203, § 33. This result excluded the appellant, who was not next of kin of the absentee, but whose rights, if any, rest upon the failure of the fund to vest in the absentee at all. It is conceded by the appellant that the statute is constitutional, Adams v. Adams, 211 Mass. 198, and it is not disputed that the three distributees named in the decree are the rightful distributees to the exclusion of the appellant, if the absentee was alive on said November 9, 1918. It is the contention of the appellant that, if the absentee on November 9, 1918, was actually or presumptively dead, the fund held under the terms of the trust and in accordance with the statute should be distributed in four equal shares as the shares of the four surviving beneficiaries, and should go to the three distributees named in the decree, as three of these four, and to the appellant as the representative of the fourth; and that the fund set apart would thus not be the absentee’s share, properly so called, but would be the property of the four then surviving beneficiaries.
St. 1905, c. 326, §§ 1, 6, (now G. L. c. 203, §§ 26, 27, 32,) defines the meaning of the word “absentee” as used in these statutes and sets forth the essential facts to be alleged in a petition for transfer of trust estates of absentees; and in § 6 of St. 1905, c. 326, and § 32 of G. L. c. 203, in the words which follow,, provides that the court shall find the facts and order transfer or sale of the trust estate to new trustees. ' ‘ The court shall find the date of the disappearance or absconding of the absentee, and any other material facts. If the court finds that such disappearance has been continuous for more than fourteen years next preceding the filing of the petition, that upon the evidence presented the ab
The court under G. L. c. 203, is not concerned with the question whether an absentee be living or dead in fact. If it shall find that the absentee has not been heard from or known of within fourteen years preceding the filing of the petition, and the facts found warrant a presumption of death, the court shall order the trust estate of which the absentee is a beneficiary transferred to new trustees in the proportions in which the fund would be distributed had the absentee died intestate on the day fourteen years after the date of his disappearance. The proceedings are in rem and are binding on all the world. G. L. c. 203, § 30. They are distinct from the power conferred upon courts of probate 'to administer the estates of deceased persons and “in all times and under all conditions” have been deemed proper governmental attributes. Cunnius v. Beading School District, 198 U. S. 458, 469.
The appellant rests his contention upon the common law presumption of death from the unexplained absence of Henry J. Zwinge for more than seven years preceding the termination of the trust on November 9, 1918, and argues therefrom that the interest of Zwinge in the trust fund had become the property of the other beneficiaries who, under the terms of the will, were entitled to receive distribution of the trust estate on November 9, 1918. In support of this
In the case at bar, when the will was probated and the trustee appointed there was a presumption that the absentee was alive and, as a living person, was entitled to share in the income of the trust fund. The entire absence of any property right in the absentee in George v. Clark, supra, clearly distinguishes that case from the case at bar, where the absentee presumably was alive at least during a period between 1907 and 1914, and, in common with other beneficiaries, had the right to share in the net income after 1,911 until the trust terminated in 1918, unless in fact he had died before the last named date.
We are of opinion the statute was rightly construed by the court and that the decree should be affirmed.
Ordered accordingly.