Gilmore v. Gilmore

241 Mass. 17 | Mass. | 1922

Braley, J.

The testator, after providing for the support of his wife by the payment of a fixed annual amount during her life, gave to Emma S. Davis, Jessie B. Gilmore and Grace Mitchell, his three daughters, all of whom survived him, “for and during the life of my said wife, all the remainder of said net rents, profits and income in equal third parts and shares,” payable yearly during the life of their mother, with a further provision that, if the minimum income did not equal a certain sum, any deficit “shall be taken from and charged to the principal of this trust ' fund. Upon the decease of my said wife, each of my said children, ... or their legal representative, if any has deceased, is to receive the sum of ten thousand . . . dollars, and I direct said Trustees to pay to each said amount, and as to all the rest and residue of said trust fund this trust shall continue, the said Trustees shall have, hold and use the same in the same manner and with the same powers and continuing any annuities and devises hereinbefore given and not ended by my said wife’s death, pay over the remaining net rents, profits or income, in quarter-yearly payments in equal parts and shares unto my said children Emma S. Davis, Jessie B. Gilmore and Grace Mitchell, an equal third part thereof unto each for and during the term of her natural life. And it is my will that after my said wife’s decease each of my said children shall receive yearly from my estate at least the sum of six thousand . . . dollars: If therefore the income hereby made payable unto them does not furnish each with such sum of six thousand . . . dollars yearly, it is my will and direction that any deficit shall be taken from and charged to the principal of this trust fund.”

The widow died November 10, 1920, leaving Jessie B. Gilmore as the only surviving daughter. By her will Grace Mitchell, after bequeathing her jewelry and devising her real property'to her two sons George W. Mitchell, who died on March 13, 1920, under age and within a year after his mother’s death and whose administrator, George Gilmore, is a defendant, and David E. Mitchell, Jr., who is still in his minority and whose guardian, the Commonwealth Trust Company of Pennsylvania, is a defendant; and giving the household furnishings of every nature to her executor, David E. Mitchell, who was her husband, also gave and bequeathed to bim all “the balance and remainder of my property.” The other daughter died intestate leaving a husband Charles B. Davis and Helen Whiting Davis, her only child, who is of full age.

The period of partial distribution of the principal was fixed by the death of the testator’s widow. The first question is to whom shall that portion of the principal given to Grace Mitchell and Emma S. Davis, be paid? The words of the testator are free from all doubt. If when distribution is to be made a daughter is not living the share coming to her is to be paid to her “legal repre- . sentative.” The gift is absolute. The testator declares that each daughter is to receive “ten thousand dollars” if living at the termination of their mother’s estate for life, and if not living, her “legal representative” is to receive the legacy as a distributee the same as if the daughter had died intestate. Bates, petitioner, 159 Mass. 252. Eager v. Whitney, 163 Mass. 463. Olney v. Lovering, 167 Mass. 446. Bailey v. Smith, 214 Mass. 114,120. Davies v. Davies, 55 Conn. 319. Griswold, v. Sawyer, 125 N. Y. 411. Casey v. Lockwood, 24 R. I. 72. Harton’s Estate, 213 Penn. St. 499. It follows that the legacies in question are to be distributed among those who would respectively have inherited the personal property of each legatee, to be ascertained as of the date of her death.

The distribution is to be made under our laws and the trustees are instructed to pay “ ten thousand dollars,” one third to Charles B. Davis, and two thirds to Helen Whiting Davis; and to George L. Gilmore, administrator of George Whiting Mitchell, the Commonwealth Trust Company of Pennsylvania, guardian of David E. Mitchell, Jr., and David E. Mitchell, “ten thousand dollars,” to be divided equally between them. Fabens v. Fabens, 141 Mass. 395. Brandeis v. Atkins, 204 Mass. 471. Ball v. Holland, 189 Mass. 369, 372, and cases there cited. Lincoln v. Perry, 149 Mass. 368. International Trust Co. v. Williams, 183 Mass. 173. Holmes v. Holmes, 194 Mass. 552, 559. Nesbit v. Cande, 206 Mass. 437. R. L. c. 133, c. 140, § 3. St. 1905, c. 256. St. 1917, c. 303. See St. 1920, c. 468, G. L. c. 190, § 1.

The second question relates to the rights of George Whiting Mitchell and David E. Mitchell, Jr., and Helen Whiting Davis, the only surviving grandchildren of the testator. By the thirteenth clause he directs his executors to pay to the trustees “ten thousand . . . dollars for each of my grandchildren now living namely, Helen Whiting Davis, George Whiting Mitchell and David E. Mitchell, Jr.,” to be invested and expended for their education “until he or she arrives at the age of thirty . . . years, at which time said sum and its accumulations, or whatever remains thereof not expended . . . shall be paid unto bim or her to hold absolutely. After each grandchild arrives at the age of twenty-one . . . years, however,” all the income coming to each grandchild is to be expended. “In the event of the death of any grandchild before arriving at the age of thirty . . . years, this fund or any balance thereof held ... for such deceased grandchild shall revert to and be paid into my residuary estate and be disposed of as provided therein.” By the death of George Whiting Mitchell before attaining the age of thirty years, his share with the unexpended income fell into the residue created by the fourteenth clause and became part of the principal. Rackemann v. Wood, 203 Mass. 501, 506. David E. Mitchell Jr. is not yet twenty-one years of age, and he is entitled to the income as provided in the thirteenth clause. While Helen Whiting Davis is of full age, it does not appear that she is outside the limitation of thirty years, and if not, she is to receive the income on “ten thousand dollars” under the thirteenth clause.

The third inquiry concerns the duties of the trustees in the administration and distribution of two thirds of the trust property remaining under the fourteenth clause. The testator says in the closing words of that clause, “And I do further provide 1. That upon the death of any of my said children leaving issue under the age of twenty-one years, the said Trustees shall have, hold, apply and expend the share of the income above allotted to such my child at their best discretion equally for the benefit, education and support of such issue until they shall arrive successively at the age of twenty-one years, if they shall so long live. And to those already at that age at the time of the death of any of my said children, and to the others as they shall successively arrive at the age of twenty-one years, the Trustees shall pay to each such portion of the trust property so held for their benefit (and formerly held for the benefit of said deceased child) as the Trustees shall adjudge to be a fair and proportionate share. In the event of the death of such issue before arriving at the age of twenty-one years, the share which he or she would have received when of full age my said Trustees shall pay unto the brothers and sisters, if any, of such deceased issue when arriving at full age.

“2. That, in the event of the death of all issue of any deceased child before arriving at the age of twenty-one years, and also in the event of the death of any of my said children leaving no issue living at the time of her decease, it is my will that the share held by said Trustees for such deceased child or for the issue of such deceásed child shall be held by them, and the income therefrom paid by them, for the use and benefit of any children of mine then living, in equal shares, for and during the natural lives of such surviving children.

“3. That, upon the death of all my said children, all said income shall be held, used and expended by said Trustees for the benefit ■of any and all grandchildren of mine in equal parts and shares, until such grandchildren shall arrive at the age of twenty-one years, and to such grandchildren already at that age at the time of the death of all my said children, and to the others as they shall successively arrive at said age the Trustees shall pay unto each an equal part and share of said trust property.

“4. That in the event of the death of all my children leaving no issue, said Trustees shall transfer, pay over and deliver said Trust Fund unto my heirs-at-law.”

The portion of the trust fund which was held for the benefit of Emma S. Davis is now held for the benefit of Helen Whiting Davis who is over twenty-one years old* and should be paid to her as “a fair and proportionate share” of the principal. If this is not done there is no provision for the payment of income on this share and the trustees can indefinitely withhold payment of the principal to the manifest defeat of the testator’s purpose. The testator by subsection 2 of the fourteenth clause divides the net rents and profits and income after the provisions for his wife “in equal third parts and shares,” and there is no reason why the division of the principal should not be on the same basis. The trustees are directed to pay to Helen Whiting Davis so much of the principal as in their judgment constitutes a fair and proportionate share but not to exceed one third, to be ascertained on the amount of property on January 15, 1920, the date of the death of Emma S. Davis, with all income on that amount which they have since received. The further provision that after his wife’s death “each of my said children shall receive yearly from my estate at least the sum of six thousand . . . dollars,” and if this amount is not realized from income the principal of the trust fund may be used to make up the deficit, is applicable only to the entire fund before a partial distribution becomes necessary as directed by the testator. We find no language which sufficiently indicates an intention, that .the share of the principal coming to the heirs of a deceased daughter is to be withheld in order to provide an annuity of “six thousand dollars” for a surviving sister or sisters. The testator as we have said intended equality of participation when the time for distribution came.

The income of the share to which David E. Mitchell, Jr. succeeds as a surviving grandson of the testator under the fourteenth clause, is to be paid to his guardian until he becomes of age. It is unnecessary to decide what disposition shall be made of income or principal if he dies during minority.

We have not overlooked the eighteenth clause, that “The bequests, devises and provisions in this Will made and the income therefrom provided for my wife, sisters, children, grandchildren and every provision herein made in trust for anyone, are made subject to the following conditions, restrictions and stipulations, that the interest of the said wife, sisters, children, grandchildren and of anyone for whom a trust is herein constituted in or right to the said trust income for them and each of them provided, shall not be in any way alienable or alienated by them or by any of them by anticipation or otherwise, and shall not be in any way subject to be taken by their creditors or liable for their debts or to be taken therefor, and the payment of the said income of said trust estates are to be made to each of them personally and not in compliance with any assignment, Provided, however, that in case of alienation or attempt at alienation or attachment or seizure by any process of law or equity the right of any such wife, sister, child, grandchild, or of anyone for whom a trust is herein constituted to receive said income or the payment thereof shall cease forthwith, and thereafter said Trustees instead of paying income or making payments thereof to such wife, sisters, child, grandchild or to anyone for whom a trust is herein constituted shall retain said income in their hands and apply the same thereafter during the continuance of this trust, or until said disability to receive the same is removed, as they shall deem best for said wife, sisters, child, grandchild, or for anyone for whom a trust is herein constituted.” But these limitations do not on the record apply to any division of principal among the grandchildren.

The Attorney General has declined to become a party to the suit, and the question of inheritance taxes, if any are due, should be left for settlement as provided by law.

A decree is to be entered in accordance with the opinion, the details of which as well as the amount of costs taxed as between solicitor and client on the fund, are to be settled in the court of probate.

Ordered accordingly.