Dexter v. Cotting

149 Mass. 92 | Mass. | 1889

Morton, C. J.

The statute provides that a trustee may be exempt from giving sureties on his bond when the testator so orders or requests, and “ any trustee shall, except as aforesaid, be so exempt when all the persons beneficially interested in the trust, being of full age and legal capacity, request such exemption.” Pub. Sts. c. 141, § 16. This is a re-enactment of the St. of 1878, c. 122, § 1, under which the trustees in this case were appointed. The plaintiffs contend that this statute should be construed as if it read like the provisions upon the kindred subject of the bonds of executors and administrators, that a trustee shall be exempt when all persons interested in the trust, who are of full age and legal capacity, request such exemption. See Pub. Sts. c. 129, § 8; St. 1885, c. 274. But we have not found it necessary to decide the question whether the statute would apply to a case where there were living parties interested in the trust who have a vested interest and who are not of full age and legal capacity.

In the case before us, under the will of the testator, the only parties who have any vested interest in the trust fund are the widow and two children of the testator. His grandchildren have no interest. The will provides that the trust shall terminate ten years after the death of his widow, when the fund is to be divided between the two children, if living. If both are then dead, leaving no issue surviving, the fund is to be “ given to such charitable and educational purposes as the trustees think best, unless either child shall have left a wife or husband; then I desire the trustees to give to such wife or husband such proportion of the income or original fund as they think would be given by me if I were then alive.”

The words of the statute, “ all the persons beneficially interested in the trust,” mean all persons who have a present vested interest, and are not intended to include all persons who may possibly become interested in the future. When the Legislature deals with the rights of parties not in being, or not ascertained, who may have a contingent interest in a trust, or, for instance, in the case of a sale of the trust estate, it uniformly speaks of them as parties who “may become interested.” Pub. Sts. c. 141, § 21; c. 120, § 20. Such parties would not accurately be described as “ persons interested,” as that expression imports persons in being who have a vested interest. In this case, as all the parties interested requested the exemption, it was in the power of the Probate Court to, exempt the trustees from giving sureties on their bonds, and the appointment of the trustees was valid.

The defendant contends that the appointment of one of the present trustees, who was appointed to fill a vacancy caused by death, is invalid, because no notice was given upon the petition for his appointment, as required by the Pub. Sts. c. 141, § 5. This statute provides that the Probate Court “ shall, after notice to all persons interested, appoint a new trustee.” But this notice “ may be dispensed with when all parties entitled thereto signify in writing their assent to such proceedings or waive notice.” Pub. Sts. c. 156, § 37. In this provision, as in the one we have before discussed, “all persons interested” does not include persons not in being, but only those in being who have a vested interest, and the record shows that all such persons signified in writing their assent to the proceedings. The statutes were complied with, and we need not consider whether, if they had not been, the defendant could take advantage of this irregularity in the proceedings.

Decree for the plaintiffs.