321 Mass. 615 | Mass. | 1947
This is a petition by the remaining trustee under the will of Martha S. Parker, late of Beverly, for instructions as to the distribution of the principal of a trust created by her will.
The testatrix died March 12, 1878. Her will was dated March 8, 1864. A codicil made in 1872 is not here material. In 1851 Martha S. Parker, the testatrix, married Richard T. Parker and immediately after the marriage, under date of October 2, 1851, she and her husband, as parties of the first part, entered into an indenture with James Parker, the elder of that name, party of the second part, in the nature of a marriage settlement, wherein the husband and wife conveyed to James certain property of the wife, who was then a minor, including all the personal property held by her guardian for her benefit and of which she or her husband was entitled to receive a transfer from her guardian. This conveyance was expressed by the indenture to be in trust to pay the income to the wife to her separate use during the marriage and to pay the entire fund to her if she should survive her husband, but if he should survive her, as actually happened, to dispose of the entire trust fund “as she, whether of full age or not, may have directed by any last will and testament in writing by her executed in the presence of three witnesses, or by any instrument of appointment by her so executed in the nature of a last will and testament, and in default of any such will or appointment,” to pay the income to the husband, Richard T. Parker, during his life and at his death to dispose of the fund as he “may have directed by any such last will and testament or instrument of appointment in the nature thereof; and in default of any such will or appointment,” then to the persons who would be the heirs at law of the wife if she had then died intestate and a widow.
Mrs. Parker by her will of 1864 attempted to dispose of all her property and estate “and of all property over which . . . [she had] any power of appointment, and especially”
Upon her death in 1878, the testatrix, Mrs. Parker, was survived by her husband, Richard T. Parker, and by her
The trust fund now in controversy was received in 1878 by the original trustees from the executor of the will of Mrs. Parker without distinction between property owned outright by Mrs. Parker and property derived by virtue of her exercise of her power of appointment under the indenture of 1851. The fund, during the period of the trust, has been administered “as one fund, no division or distinction having been made at any time with regard to the source of said property whether derived from property owned by the said Martha S. Parker in her own right or whether derived from said trust of October 2, 1851.” At least the greater part of the original fund came from the 1851 trust and not from property owned outside that trust by the testatrix, Mrs. Parker. Some of the parties contend that all of the present fund is proceeds of the 1851 trust.
. Facts in addition to those hereinbefore stated will be mentioned hereinafter as occasion requires.
The judge of the Probate Court accepted the view last above stated and ordered the entire principal of the trust, whether derived from the 1851 trust fund or from Mrs, Parker’s own property, to be distributed among the surviving issue of Mrs. Parker’s sisters. The other interested parties appeal.
1. Any consideration of the questions presented in this case must begin with the rule laid down in Minot v. Paine, 230 Mass. 514, 523. In that case, after elaborate consideration, it was settled as the law of this Commonwealth that “the remoteness of an appointment, made in the exercise of a power to appoint by will alone, so far as affected by the rule against perpetuities must be measured from the time of the creation and not the exercise of the power” (230 Mass, at page 523), but that “the words of the rule are satisfied if it appears that in-the light of facts as to relationship and longevity existent when the appointment is exercised, the estates created in truth will vest and take effect within the period limited by the rule, although this may not have been certain at the death of the donor of the power.” 230 Mass. at page 522. The Restatement is in accord with Minot v. Paine. Restatement: Property, •§ 392. In the case at bar Mrs. Parker’s power of appointment un
2. It is argued that the rule of Minot v. Paine does not apply where the power is “reserved” by the donor to himself rather than granted to another, that is to say, where the donor and the donee of the power are the same person. No authority for such a distinction is cited from any jurisdiction in which the rule of Minot v. Paine is adopted. The rule against perpetuities is a rule of public policy resting upon the view that it is socially undesirable that the alienation of property be fettered for long periods of time. So far as that object is concerned it would, seem to be immaterial whether in the beginning the power was granted or merely “reserved.” The validity of the indenture of 1851 is not challenged. Under the indenture Mrs. Parker had no power of appointment by deed inter vivas. From the moment the indenture of 1851 took effect her right of alienation was appreciably restrained. See Crawford v. Langmaid, 171 Mass. 309; Vinton v. Pratt, 228 Mass. 468, 471; Corey v. Guarente, 303 Mass. 569, 573-575. If the appointments contained in her will are held wholly valid, the result will have been that at no time from 1851 until
3. Since originally the greater part at least of the trust fund in controversy was composed of property over which Mrs. Parker had a testamentary power of appointment under the 1851 indenture, it may be convenient to deal first with the devolution of that appointive property.
It is a recognized principle in the law of property that where the donee of a general power attempts to make an appointment that fails, but where, nevertheless, the donee has manifested an intent wholly to withdraw the appointive property from the operation of the instrument creating the power for all purposes and not merely for the purposes of the invalid appointment, the attempted appointment will commonly be effective to the extent of causing the appointive property to be taken out of the original instrument and to become in effect part of the estate of the donee of the power. And where, as in this instance, the invalid appointment is in trust there will be a resulting trust to the estate of the donee of the power. It is unnecessary to restate the reasons for these rules. They originated in a series of decisions of the English courts and have been applied in our own cases of Dunbar v. Hammond, 234 Mass. 554 (see particularly page 558, paragraph 6), Talbot v. Riggs, 287 Mass. 144, and
We have not overlooked the case of Bundy v. United States Trust Co. 257 Mass. 72, at page 81, where this court said, “We are of opinion that Dunbar v. Hammond is limited to the case where the donor has made no provision for the donee’s default of appointment, or for the event of his intestacy.” No authority was cited for this statement. If this means that the principle of Dunbar v. Hammond, Talbot v. Riggs, and Old Colony Trust Co. v. Allen can never apply in any instance where the donor of the power has made a gift over in default of appointment, we think it is based upon a misapprehension of Dunbar v. Hammond and that it goes too far. As we read the will of Sally Hammond from the original record in Dunbar v. Hammond, the will in that very case did provide for default of appointment by any of the daughters to whom powers were given,
4. For the reasons stated, Mrs. Parker’s exercise by her will of the power of appointment given her by the indenture of 1851 had the effect, by way of a resulting trust, of making the appointive property assets of her own estate. But it did not have the effect that some of the parties assume it had of subjecting that property to the terms of the trust under the residuary provisions of her will and therefore of making valid again the invalid limitations contained in those provisions on the theory that such limitations would not have been too remote and would have been valid, if made by Mrs. Parker at her death in 1878 a¡s to her own property not governed by any power of appointment. It would be reasoning in a circle and a mere evasion of the rule of Minot v. Paine, 230 Mass. 514, to say that because those hmitations were invalid and could not take effect
5. But it is urged by the remote appointees of Mrs. Parker that because Richard T. Parker consented to Mrs. Parker’s
In the view we take ,we are not called upon to determine whether election is ever required where to require it might put pressure upon the legatee to make good limitations which are otherwise against the public policy expressed in the rule against perpetuities.
It may be added that the children of Mrs. Parker were not bound to any election because of their acceptance of life interests in the income of the trust under her will. At the time of such acceptance they had no interests in conflict with anything contained in the will and acquired none until long afterwards when at the death of their father in 1904 they acquired by his will the interest in the property
6. We are unable to accept the further contention of some of the parties that in the indenture of 1851 Mrs. Parker retained a reversionary interest which was not subject to the rule against perpetuities and which passed by her will. It is true that she was to receive back the trust property, if she survived her husband, but she did not survive him, and in the events that occurred the title was completely exhausted according to the limitations of the indenture and any reversion was lost as a result of Mrs. Parker’s exercise of her power vesting the appointive property in her own estate, and thereby leaving nothing in the nature of a reversionary interest. Moreover, the argument of some of the parties would, we think, require us to apply highly technical rules of the common law of real property to defeat the lawful intent of the creators of the 1851 trust. This we are not required to do. See Sands v. Old Colony Trust Co. 195 Mass. 575; National Shawmut Bank v. Joy, 315 Mass. 457, 463-464; Doctor v. Hughes, 225 N. Y. 305, 311-312; Abbiss v. Burney, 17 Ch. D. 211, 230-233; Scott on Trusts, § 59.
7. We cannot accept the contention made by the issue of Mrs. Parker’s sisters that because probate accounts of the trustees under Mrs. Parker’s will making no distinction between assets of the trust derived from Mrs. Parker’s own estate and assets derived from the appointive property have been adjudicated and allowed all parties are now precluded from insisting that any of Mrs. Parker’s appointments were invalid. We do not see that these accounts dealt in any way with the disposition of the principal of the trust under Mrs. Parker’s yáH- The life estates to her children were valid to the extent of their original shares of income before augmentation by the death of any of them. While these life estates were running there was but a single trust which included both Mrs. Parker’s own property and the appointive property, and the fact that the fund was accounted for
8. Having come to the conclusion that the principal of the property derived from the 1851 trust passed, subject to the life interests of the children under the trust in Mrs. Parker’s will, to Richard T. Parker and through his will to the children, the next step is to ascertain what proportion of the present trust fund is attributable to the 1851 trust. This is a question of fact, but since the evidence is reported and the material portions consist of agreed facts and documents and nothing depends upon the credibility of witnesses, it is for us to determine the fact for ourselves without regard to the finding of the trial judge. Veazie v. Staples, 309 Mass. 123, 127. Pitman v. Pitman, 314 Mass. 465, 475.
The inventory of Mrs. Parker’s estate filed by her executor in 1878 obviously included appointive property as well as that owned by Mrs. Parker. That inventory showed total assets of $150,205.55. It has been found possible, evidently by the expenditure of much effort, to trace every item in this inventory to the 1851 trust by proof which we consider clearly sufficient, except an item of cash of $5,540.55, and an item of “household furniture and other articles appraised at 5,000” (both items being in all probability, and as we find, Mrs. Parker’s own property), and except also the following: six shares of Cocheco Manufacturing Company, two shares of Jackson Manufacturing Company, seven shares of Railroad Bank, forty-five shares of Boston and Maine Railroad, twenty-three shares of Ogdensburg and Lake Champlain Railroad Company, and twenty-four shares of Mercantile Marine Insurance Company. It appears, however, with reference to the Cocheco and Jackson stocks, that on October 2, 1851, the date of the 1851 indenture, James Parker the elder, the original trustee under that indenture, signed a receipt attached to a final account of the guardian of Mrs. Parker in which James Parker the elder as trustee acknowledged receipt from the guardian of various securities, including a list of mill stocks. This list
It is believed that the foregoing findings will enable a calculation to be made with reasonable accuracy of the sum
It is recognized that the figures arrived at by this method will not be free from the possibility of error, but it is believed that any error will be slight and that the results will fall within the limits of probability and will not be conjectural. No better method by which the assets of the present trust that came from the 1851 trust can be distinguished from those that came from Mrs. Parker’s own property is now available than that supplied by the respective proportions in which the fund was originally derived from these two sources. See Scott on Trusts, § 519.
The question in this part of the case is whether the illegitimate daughters of Mrs. Parker’s child Mrs. Taylor are comprehended within the expression "the issue of my deceased children” as used in Mrs. Parker’s will. ’ We can hardly regard this as an open question in this Commonwealth. It cannot be doubted that by the common law of a few generations ago such words as issue, children, descendants, and so forth as descriptive of a class in a grant, devise, or legacy, in the absence of anything indicating a contrary intent, meant only persons of the class who were born in lawful wedlock. In the case of Adams v. Adams, 154 Mass. 290, at page 292, this court said without qualification, "The word ‘children’ in a Massachusetts will means legitimate children.” In Hayden v. Barrett, 172 Mass. 472, at page 474, this court said, ". . . it is also well settled that, in the absence of any language clearly expressing the contrary, all general words in the statutes of distribution, such as ‘child,’ ‘children,’ ‘next of kin,’ and similar words descriptive of classes who are to inherit, do not include illegitimate children. . . . And so of similar expressions in a Massachusetts will.” In Green v. Kelley, 228 Mass. 602, at page 606, this court, speaking of words in a will, said, ‘“Lineal descendants’ means the legitimate immediate and remote progeny in direct. line.” And again on the same page and the page following the court said* "The lineal descendants of any resident of Massachusetts, according to its law, are those who by the law of the State of their domicil of origin and residence are the legitimate issue of that person.” In Sanford v. Marsh, 180
The word issue in a Massachusetts will must be interpreted against a background of statutory phraseology and construction which has remained wholly consistent for well over a century. It is provided by G. L. (Ter. Ed.) c. 4, § 7, Sixteenth, that in construing statutes unless a contrary intention clearly appears "'Issue/ as applied to the descent of estates, shall include all the lawful lineal descendants of the ancestor.” The provision of G. L. (Ter. Ed.) c. 191, § 20, in behalf of a child or the issue of a deceased child unintentionally omitted from a will does not aid an illegitimate child or the illegitimate issue of a deceased child. Kent v. Barker, 2 Gray, 535. King v. Thissell, 222 Mass. 140. King v. Dolan, 255 Mass. 236. Illegitimate children are not within the description "children” in the workmen’s compensation law. Gritta’s Case, 236 Mass. 204. Di Clavio’s Case, 293 Mass. 259, 263. The grandparents of an illegitimate child are not as his "kindred” hable for his support under G. L. (Ter. Ed.) c. 117, § 6. Plymouth v. Hey, 285 Mass. 357. And see further Cooley v. Dewey, 4 Pick. 93; Curtis v. Hewins, 11 Met. 294; and Pratt v. Atwood, 108 Mass. 40.
The presumption that children or issue in a will means legitimate children or issue in the absence of indications to the contrary has not in this Commonwealth been thought to be affected by the provisions of G. L. (Ter. Ed.) c. 190, § 5, whereby an illegitimate child may in case of intestacy inherit from or through his mother. Practically all the cases hereinbefore cited and all those in which the court was speaking of the interpretation of wills were decided while
We are aware that the position we feel bound to take is not fully in accord with Restatement: Property, §§ 265, 286, 292, but it is in accord with decisions and statements in opinions in many other jurisdictions (including some in recent cases) which may still be said to represent the weight of authority. See, for example, Johnstone v. Taliaferro, 107 Ga. 6, 20; Marsh v. Field, 297 Ill. 251, 256; Brisbin v. Huntington, 128 Iowa, 166, 174, 180; Lyon v. Lyon, 88 Maine, 395; Heater v. Van Auken, 1 McCarter, 159; Brown v. Holland, 221 N. C. 135; In re Thorn’s Estate, 353 Pa. 603; Central Trust Co. v. Skillin, 154 App. Div. (N. Y.) 227; Matter of Cady’s Estate, 257 App. Div. (N. Y.) 129, affirmed 281 N. Y. 688; Will of Scholl, 100 Wis. 650, 662; Flora v. Anderson, 75 Fed. 217, 235-236; Page on Wills, § 1027. Many New York decisions are collected in Matter of Underhill’s Estate, 176 Misc. (N. Y.) 737. A contrary view has been taken in Rhode Island (Rhode Island Hospital Trust Co. v. Hodgkin, 48 R. I. 459) and in Virginia (Bennett v. Toler, 15 Grat. 588), and the common law rule seems never to have been accepted in Connecticut. Eaton v. Eaton, 88 Conn. 269.
If this rule of construction is deemed too harsh, the remedy is not to be found in sudden and unheralded changes by judicial decision in the meanings of words which have long been established and accepted and in reliance upon which wills have been drafted and settlements of property effected.
Nothing appears in Mrs. Parker’s will or in the circumstances of the case to indicate that she did not use the word “issue” in the sense attributed to it by established legal usage. It follows that Mrs. Taylor’s illegitimate daughter Mrs. Mishou, and the Attorney General of the United States, who claims under the other illegitimate daughter,
The usual course would be to distribute as much of the principal of the trust fund as is attributable to the 1851 trust to the administrator with the will annexed of Richard T. Parker. Old Colony Trust Co. v. Clarke, 291 Mass. 17, 23. But the administrator requests that as a matter of convenience distribution be made directly to the representatives of the estates of James Parker, the younger, Charles T. Parker, and Mary Martha Taylor. Ancillary probate was granted in this Commonwealth more than thirty years ago upon the will of Richard T. Parker, who died a resident of New Hampshire. If the Probate Court is satisfied that his estate has been fully settled, there seems to be no objection to the making of distribution as requested directly to those who in any event are finally entitled to receive the money. Boston Safe Deposit & Trust Co. v. Stratton, 259 Mass. 465, 472-473. Old Colony Trust Co. v. Shackford, 291 Mass. 361, 365. Siich income as has accrued since the principal became distributable at the death of Mrs. Taylor is to be treated as accretion to the principal.
In making distribution as between the estates of Charles T. Parker and Mary Martha Taylor the trustee is to withhold from the latter estate and tp pay to the former estate a sum sufficient to correct any overpayments of income which the Probate Court upon rehearing of the trustee’s accounts in accordance with the rescript in the companion ease of Porotto v. Fiduciary Trust Co. post, 638, may determine have heretofore been made to Mary Martha Taylor in her lifetime. Minot v. Purrington, 190 Mass. 336, 341-342. Case v. Clark, 220 Mass. 344.
The decree is reversed and the cause is remanded to the Probate Court for the entry of a decree in accordance with this opinion. Costs and expenses of appeal are to be in the discretion of the Probate Court.
So ordered.
The material portions of this will can be found in Olney v. Balch, 154 Mass. 318, where the will was construed by this court.
In England the law now seems to be settled that the court will not require election in such cases. Wollaston v. King, L. R. 8 Eq. 165. In re Oliver’s Settlement, [1905] 1 Ch. 191. In re Beales’ Settlement, [1905] 1 Ch. 256. In re Wright, [1906] 2 Ch. 288. In re Nash, [1909] 2 Ch. 450, affirmed in Court of Appeal, [1910] 1 Ch. 1. The case of In re Bradshaw, [1902] 1 Ch. 436, 442-446, holding to the contrary, has not been followed, although Professor Gray believed it to be right. Gray, Rule Against Perpetuities (4th ed.) §§ 561-561.6. Notwithstanding the eminent authority of Professor Gray, several American cases agree with the English decisions. In re Walkerly, 108 Cal. 627. Schuknecht v. Schultz, 212 Ill. 43, 48. Ford v. Yost, 299 Ky. 682, 687-690. Bowers v. Smith, 10 Paige Ch. 193. See Rieves v. Smith, 184 Ga. 657, and cases collected in 162 Am. L. R. 165. But there are a few decisions to the contrary. Albert v. Albert, 68 Md. 352. Chipman v. Montgomery, 63 N. Y. 221.
By Mrs. Parker’s will these legacies were payable by the trustees out of the trust fund, but in fact they were paid by the executor. The fact that the executor paid them seems immaterial since, whoever paid them, they would come out of the fund otherwise available for the residuary trust and would be paid out of Mrs. Parker's own property and out of property that came from the 1851 trust in the same proportions in which the residuary trust fund itself came from those two sources.