131 Mass. 355 | Mass. | 1881
This bill is brought against Caroline Mitkiewicz, her husband Eugene Mitkiewicz, and Rhoda Ann Lester, to subject to the payment of a debt alleged' to be due to the plaintiff
But the difficulty is, that she does not hold the fund by virtue of a trust created by instrument inter partes and without judicial decree, and which, therefore, might be enforced against her wherever she might be found. Massie v. Watts, 6 Cranch, 148, 160. Perry on Trusts, § 70.
The bill shows that Ralph Lester’s will was admitted to pro bate in a court of appropriate jurisdiction in the State of New York, where he resided at the time of his death, and that the defendant Lester was there appointed executrix and accepted the trust, although she has never filed in court any inventory or account as executrix or trustee. It does not show that the will has ever been proved or recorded in this Commonwealth, or that any letters testamentary or of administration or trusteeship have been issued here. The trust on which the property is held by her having been created by judicial decree of a court of another State having jurisdiction of the matter, she is accountable in the courts of that State for the due execution of the trust; and, by the decisions and the settled practice of this court, the trust cannot be enforced in this Commonwealth, although the trustee personally resides here. Campbell v. Sheldon, 13 Pick. 8. Campbell v. Wallace, 10 Gray, 162. Chase v. Chase, 2 Allen, 101,104. Smith v. Mutual Life Ins. Co. 14 Allen, 336, 342. See also Curtis v. Smith, 6 Blatchf. C. C. 537, 550, 551; Same v. Same, 60 Barb. 9.
The case does not differ in principle from that of an executor or administrator appointed in another State, who is not responsible in this Commonwealth for assets received here, if he has not here taken out letters of administration, nor for assets received in the other State, even if he has taken out ancillary administration in this Commonwealth. Vaughan v. Northup, 15 Pet. 1. Fay v. Haven, 3 Met. 109. Norton v. Palmer, 7 Cush. 523.
It follows that the trust could not be enforced in this Commonwealth by Mrs. Mitki.ewicz, and consequently cannot he by any creditor of hers, and that the bill must be dismissed for want of jurisdiction; and the question whether her interest in the trust fund is such as could be reached by her creditors in a court having jurisdiction of the cause and of the parties cannot be determined in this suit. Decree affirmed.
A similar decision was made in Worcester, November 25, 1881, in the case of
Samuel R. Leland & others vs. Isaac C. B. Smith & another.
Bill in equity, alleging that the plaintiffs have recovered judgment against the first-named defendant in the Superior Court in Worcester for the sum of $647.64, which is still due and unpaid; that he has no attachable property, and that his only property of which the plaintiffs have any knowledge is the income of a fund vested in the hands of the other defendant as surviving trustee under the will of Alfred Smith, of Hartford in the State of Connecticut; that by the terms of the trust the income is payable to the first-named defendant semiannually, either in January and July or in April and October, but the plaintiffs are not informed when the payments are made by the trustee; that the sum invested for his benefit by the trustee is more than $30,000, and the income thereof, when due and payable, more than enough to satisfy the plaintiffs’ judgment; and that the trustee declines to inform the plaintiffs how much is due and when it is payable, or to pay any sum to the plaintiffs upon the order of the first-named defendant given before the same is due and payable. The bill prays for an injunction, and for a payment by the trustee of the plaintiffs’ debt out of the income as it shall accrue and become payable, and for further relief.
The defendants, in their answer, set forth the will of Alfred Smith, by which he bequeathed a sum of $100,000 in trust for his three grandchildren, of whom the first-named defendant was one, and their heirs, with directions to distribute and pay over to each of them during his life an equal share of the income derived from the trust fund semiannually, either on the first days of January and July or on the first days of April and October, as might be most convenient, with remainder to their heirs, and declared it to be his will and intent that the income should be and remain and be kept for the personal use and property of his grandchildren respectively until the several
The answer further alleges that, at the time of the service of process, there was not in the hands of the trustee any income due or overdue to the other defendant; that the execution of the trust and the construction to be placed upon it, not only as to its general scope and effect, but also as to the question whether the income could be come at and held by bill of his creditors for his debts, is to be determined by the law of the State of Connecticut; and that the income cannot be so reached by the law of either State; and admits the other facts alleged in the bill.
The case was set down for hearing on bill and answer, and an agreement that the law of Connecticut, if held by the court to be material, might be taken to be as contained in the published statutes and reports of that State; and was thereupon reserved by Sevens, J. for the determination of the full court.
W. A. Oile, for the plaintiffs.
W. S. B. Hopkins, for the defendants.
By the Court. The trust, on which the property sought to be reached by this bill is held, having been created by the will of a citizen of Connecticut, and it not appearing that there has been any probate or record of the will, or appointment of the trustee, in this Commonwealth, the trust can be enforced by the beneficiary, or availed of by his creditors, in the courts of Connecticut only. Jenkins v. Lester, supra, and cases there cited.
Biu dismissed.
