152 Mass. 123 | Mass. | 1890
The object of the bill in the case at bar is not to ascertain the duty of a trustee or of an executor in the administration of property held by him as such, but to determine in what capacity the plaintiff holds it, and thus to decide to which of two claimants, or classes of claimants, the fund in his hands belongs. Both classes of claimants derive their title from, and claim under, the provisions of the will of Benjamin Gorham, the legacies made therein, and the proceedings which have taken place thereunder; each demands the same property, or a part of the same property, and the plaintiff is a mere'stakeholder, having no interest in the disposition thereof. Such a bill is within the jurisdiction of a court of equity. Stevens v. Warren, 101 Mass. 564. Putnam v. Collamore, 109 Mass. 509.
All persons who have desired to appear and answer have stated their respective claims to the fund fully. These claimants are very numerous, and may be divided for convenience into two classes ; namely, the next of kin of Benjamin L. Gorham
Benjamin Gorham died on September 2T, 1855, and the first clause of his will, which was dated November 12, 1854, was as follows: “ In the name of God, Amen. I, Benjamin Gorham, of Boston, Esq., do make and publish this my last will and testament. I order all my debts to be paid, and among them I direct that there should be paid to my son Benjamin Lowell Gorham, or his trustees, or as the law may require, eight thousand dollars for the balance of the property of his which from time to time has come to my hands from his Grandmother Lowell’s estate, and his uncle William Cabot’s, the said eight thousand dollars to be in full discharge of all such sums by me received, and all interest thereon, and the said eight, thousand dollars is to be allowed (unless paid in my lifetime) notwithstanding that the payments I have made and continue to make on his account would reduce said balance greatly below that sum.”
The will, after providing for various legacies and two annuities of four thousand dollars each, contained in the residuary clause the following provisions: “ I give all the rest and residue of my property, real and personal, including the reversion of the two above mentioned annuity funds of four thousand dollars each, to my son Benjamin Lowell Gorham, in fee simple, to be holden,
Peter C. Brooks was named executor in the will, and accepted the office. Francis 0. Lowell, in accordance with the power conferred upon him in the above residuary clause, associated with himself George A. Bethune as co-trustee. Benjamin L. Gorham, who continued insane, died on June 2, 1889, intestate and without issue. The plaintiff is the sole surviving trustee, in succession to Francis C. Lowell and George A. Bethune, under the will of Benjamin Gorham, and is also the administrator of the estate of his son, Benjamin L. Gorham.
The principal questions to be determined are whether the pro
The policy in question in the Hospital Life Company was for $8,102.67, and was purchased on February 1, 1856, by Peter C. Brooks, executor of the will of Benjamin Gorham. It was numbered 3090, and was placed by the company in an envelope indorsed by it, “ 3090, Benjamin L. Gorham.” On this envelope Brooks wrote as follows, immediately under the above indorsement : “ $8,102.67 in the Massachusetts Hospital Life Insurance Company.” And about an inch below that he again wrote, “ The sum of $8,000 due from the estate of Mr. Benjamin Gorham to his son Benjamin L. Gorham, he being insane; and by the request of Mr. Gorham, no guardian has been appointed. I have deposited the above sum, with $102.67 interest, in the Life Office for Mr. Benjamin L. Gorham’s benefit.” Copies of this envelope and policy were exhibited. On November 14, 1855, Brooks had sold some securities belonging to the estate for $33,176.25, and the interest on $8,000 from November 14 to January 31, inclusive, at six per cent, is $102.67. The first account of the executor shows payments of legacies on November 15, 1855, to a considerable amount.
The above policy, and another policy in the Hospital Life Company, numbered 2876, which latter was an investment made by Lowell in the lifetime of Benjamin Gorham, and at his request, of a legacy to Benjamin L. Gorham, were both in Lowell’s hands at the time of his death in 1874. A letter, dated in May, 1850, from Benjamin Gorham to Lowell, was also found among Lowell’s papers, in which the latter was requested to take charge of and invest this legacy, made in the testator’s lifetime for the benefit of his son, in a policy of the Hospital Life Company. Both policies were handed by Lowell’s executors to the plaintiff,
Brooks filed two accounts as executor in the Probate Court; the first, filed on February 11, 1856, and allowed on March 8, 1856, shows a considerable sum paid to the trustees of the residue, and something over $18,000 retained by Brooks. The second, allowed on January 12, 1857, shows a payment, among others, of $2,016.72, to the trustees of the residue, for which they gave the following receipt: “$2,016.72. Boston, 26 December, 1856. Received of Peter C. Brooks, executor of the estate of Benjamin Gorham, the sum of two thousand and sixteen dollars, being the residue of the said Benjamin Gorham’s estate now paid as by the provision of the will to the trustees of Benjamin Lowell Gorham. George A. Bethune, for self and co-trustee, for B. L. Gorham.” This account shows a balance in the hands of Brooks of $8,000. Neither account makes any reference to the purchase of policy 3090, or to its accumulations, nor to the interest, amounting to $102.67, invested in that policy. Brooks, who died in 1880, never filed any further accounts, and was succeeded by an administrator de lonis non of the estate of Benjamin Gorham. The trustees of the residue of the estate of Benjamin Gorham, under his will, in their first account charged themselves as follows: “ December, 1856, received from Peter C. Brooks, executor, balance $2,019.22, and take credit, December 29, 1856. Paid P. C. Brooks, ex’r, for advertising, $2.50.”
William O. Gorham was a brother of Benjamin L. Gorham, and deceased during the lifetime of their father, leaving bis property by his will for the benefit of Benjamin L. Gorham and other purposes. Benjamin Gorham left a memorandum as to his son’s property, which was handed over by Brooks, as executor, to the trustees of the residue under the will. The trustees under the will of Benjamin Gorham, and the trustees under the will of William O. Gorham, have filed accounts nearly every year since 1856, the last accounts including the period to March 29, 1889, in which they take credit for all
The following facts were conceded in reference to the first clause of the will of Benjamin Gorham. The property therein referred to as having come to him from the estate of William Gabot was received by Benjamin Gorham for his son under the residuary clause of the will of William Cabot, which provided that one half of the residue of his estate should be held by trustees, among whom was Francis C. Lowell, and the income paid to Benjamin Gorham for the benefit of the latter’s children during their minority, the principal to be paid to them when they became of age, the share of any deceased child to go to the survivor or survivors. The property referred to in the same clause as having come to Benjamin Gorham from “ Grandmother Lowell’s estate ” was derived from the estate of the grandmother of Benjamin L. Gorham, collected by Benjamin Gorham during his son’s minority as his natural guardian, no letters of guardianship having been issued, and no bond having been given. Benjamin Lowell Gorham became insane in 1831, he then being fifteen years of age, and after the death of his brother, in 1843, he was an only child. Peter C. Brooks and Francis 0. Lowell were his own cousins.
Upon these facts, the single justice who heard the case found that Brooks intended to appropriate the money paid for the policy numbered 3090 (the proceeds of which are here in question) to the satisfaction of the legacy of $8,000 to Benjamin L. Gorham, and that he and Lowell considered that they held the policy in trust for Benjamin L. Gorham. This finding appears to us justified by the evidence.
Those interested under the residuary clause of the will of Benjamin Gorham contend that this policy was an investment for the benefit of his estate by his executor, and that it is to be treated as a part of that estate unadministered by the executor, but which has now been paid over by the administrator de bonis non of the estate of Benjamin Gorham to the plaintiff, who is the surviving trustee of Benjamín L. Gorham, and is
The expense of the support of Benjamin L. Gorham has been paid entirely from the trust funds created by the will of Benjamin Gorham, or by that of William C. Gorham, the brother, and there is a claim made that some of the property in the hands of the plaintiff should be appropriated to reimburse either in whole or in part these expenditures, and be transferred to the trusts created by these wills. It is suggested, on behalf of some of those interested, that if Brooks rightfully paid the $8,000 in satisfaction of the legacy to Benjamin L. Gorham, he became guardian in fact of Benjamin L. Gorham, and should have applied the income of the legacy to his support, and that the trustees were only entitled to pay out of the trust funds so much as might, in the words of Benjamin Gorham’s will, be £‘ necessary, from time to time, for the education or other wants of said B. L. Gorham,” these words implying that these funds were only to be used when the income from Benjamin L. Gorham’s own property was exhausted. In the will, the trustees were thus authorized “ to pay over any of the income, or of the principal if necessary, from time to time,” etc., and, both in the clause quoted from and other clauses, the words “ if necessary ” are connected with the use of the principal. The fullest discretion is given to expend liberally from the income of the trust fund, and from the principal if necessary, for the comfort or the gratification of the wishes and tastes of Benjamin L. Gorham. The trustees under the wills, both of Benjamin Gorham and of William C. Gorham, have made expenditures and filed accounts thereof under the ample authority given by both wills, and have exercised only the discretion they were entitled to exercise. These accounts have been allowed, and the amounts cannot now be recovered back, or charged against the estate of Benjamin L. Gorham. We see no ground for interfering with the discretion they have exercised.
Instructions accordingly.
See Hills v. Barnard, ante, 67.