278 Mass. 44 | Mass. | 1931
This is a suit to compel the defendant to make good to the plaintiff the amount which she would have received had her son exercised in her favor a power of appointment under the will of his grandfather, William H. Hill. After a trial on the merits a final decree was entered dismissing the bill, and the plaintiff appealed from this decree.
The defendant, who is an attorney at law, was a beneficiary and trustee under the will of his father, William H. Hill, who died on October 14, 1913, and whose will was admitted to probate on November 5, 1913, in the county of Norfolk. The plaintiff personally received a bequest of $50,000 under the will. The residuary clause of the will set up a trust fund. The plaintiff’s intestate, Ernest L. Hill, the son of the plaintiff, and a nephew of the defendant, who was a minor nine years of age at the time of the death of the testator, was a beneficiary under the will, entitled to a share of the income of the trust fund during his life, and to a nayment of $50,000 at the age of twenty-five years with which to enter business if the trustees should deem it wise. The bequests in the residuary clause of the will for children and grandchildren are made subject to the condition that their interests shall not be alienable and shall not be subject to be taken by
On November 5, 1913, the plaintiff was appointed guardian of Ernest L. Hill during his minority. The defendant’s firm acted for the plaintiff in obtaining that appointment, and they occasionally acted for her in her individual capacity in specific matters in connection with her private business. She also employed other attorneys. The plain
After the plaintiff and her son left the meeting, her son said to her, “Now the Hill family won’t get my money, will they? Because up to twenty-one years old they would have .... Now you will get it if anything happens to me.” Ernest L. Hill was then in good health. On June 24, 1925, he was suddenly taken ill, and from then until his death on July 9, 1925, was not in a fit mental condition to execute any will or other instrument of appointment. As he failed to exercise his power of appointment, by the terms of the will of William H. Hill his proportionate share became payable to and among the surviving beneficiaries under the trust clause, of whom the defendant was one.
We observe no reversible error in the conclusions of the trial judge that the defendant’s conduct in preparing and having executed releases by Ernest L. Hill to the plaintiff and the trustees without suggesting that he obtain independent advice had nothing to do with the matters here in controversy, and that the defendant’s statement in the presence of the plaintiff, many years before her son became of age, about the effect of the exercise of the power by will by one of the other donees of the power of appointment was not calculated to and did not in fact influence either the plaintiff or her son with respect to the exercise of the power by him.
The trial judge states that “The defendant was present when the plaintiff listened to the reading of the entire will soon after the decease of William H. Hill .... One of these printed copies [of the will] was given to the plaintiff and she read it in its entirety. She is a woman of intelligence and business capacity far above the average. If she did not understand the significance of the power of appointment created by the will, she never consulted the defendant about it and he had not the slightest reason to believe that she did not understand the provisions of the will with respect to the power of appointment, or that she did not know what would happen to the trust fund if her son failed to exercise the power. A printed copy of the will was in the
The judge also found that until the beginning of the last illness of Ernest L. Hill, about two weeks before his death, the defendant had no occasion to consider the necessity of the exercise of the power of appointment by Ernest L. Hill and he gave no consideration to it after this illness commenced because the mental condition of Ernest L. Hill was such that the defendant had no reason to believe that he was capable of making a will or exercising a power of appointment, that the relations between the son and his mother were such that if he had exercised the power of appointment he undoubtedly would have made her his beneficiary, but that it is entirely conjectural whether he would have exercised the power of appointment if he had been fully advised of his rights under the will by the defendant immediately upon his becoming of age. He ruled that the portion of the trust fund received by the defendant came from the testator who created the fund and not from Ernest L. Hill, and that as trustee he was under no duty of furnishing him independent advice in respect thereto; that upon the facts found and all the evidence the defendant was guilty of no breach of fiduciary duty which renders him liable to the plaintiff either individually or in her capacity of administratrix of her son’s estate.
When all the terms of the will are considered, the direction to the trustees to pay a portion of the estate upon the death of any of the designated beneficiaries to whomsoever such beneficiary “shall by last will and testament or by any
, Upon the facts found and the evidence we are unable to
Decree affirmed with costs.