Leverett v. Barnwell, 214 Mass. 105

Leverett v. Barnwell

214 Mass. 105 | Mass. | 1913

Braley, J.

The plaintiffs are trustees under an indenture, which, after reciting that the settlor from motives of good will was desirous of settling a certain fund for the maintenance and support of Edwin J. Hulbert and Frances C. Hulbert his wife and for the benefit of their issue, and after defining the powers of the trustees as to investments and reinvestments, provided, that the fund should be held “In trust to pay over the net rents, profits, dividends, and income of said trust property quarter yearly as *107nearly as may be, but entirely at their discretion, and in such proportions as they may at the time of each payment, fix and determine to the said Edwin J. Hulbert and Frances C. Hulbert his wife, or the survivor of them, and to their issue, or to any one or more of such persons, or at the discretion of said trustees, to apply the same or any part thereof for any one or more quarters, to the support of any one or more of such persons, or to the education of any one or more of such persons who may at the time of such application be under the age of twenty-one years, until the death of the survivor of said Edwin J. and Frances C. it being expressly provided that the discretion of said trustees shall be absolutely free and unfettered as to which and how many of such persons shall receive each of said quarterly payments and in what proportions, and as to whether and in what proportions or amounts the said rents, profits, dividends and income or any part thereof shall for any one or more quarters be applied to the support or education of any one or more of said persons, and as to withholding from any one or more all share in, or benefit from any one or more of said quarterly payments; And such discretion shall be exercised in the fullest and most unlimited manner at the time of making each of such quarter yearly payments and not previously.” A spendthrift trust where there are no vested interests is here created, and the trustees from the beginning paid to the husband, who survived his wife but is now dead, the entire net income quarterly, although no regular quarter days ever were established. The trustees held at his death the income accruing since the last payment, which was made nearly a quarter of a year before his death. It having been further provided, that upon the death of the surviving spouse the trustees are to convey, divide, distribute and pay over the principal to and among their issue, who are to take by right of representation, the trustees if they have the power, intend to apportion the accrued income between the administrator of the estate of the husband and those who are entitled to take as his heirs at law.

The question for decision therefore is, whether the accrued income fell into the principal upon the death of Edwin J. Hulbert. It is true that no specific provision for apportionment is found, if his death occurred between the quarterly payments. But this is not decisive. McElwain v. Hildreth, 203 Mass. *108376, 379. The trust is not intended solely for the benefit of the remaindermen. It is primarily for the support and maintenance of the husband and wife to whom the whole income could be paid. To secure this, the broadest powers of administration are conferred, with which the court will not interfere except upon clear proof that the trustees are abusing their authority and acting in perversion of the trust. Proctor v. Heyer, 122 Mass. 525. Sells v. Delgado, 186 Mass. 25. If the purpose and intention of the settlor, as shown by the provisions for his benefit, were not fully accomplished at the death of Edwin J. Hulbert, the power to effectuate that purpose is not a mere naked power which coincidently perished, but, being a power coupled with a trust, it survived. Chandler v. Rider, 102 Mass. 268. May v. Brewster, 187 Mass. 524. Ely v. Dix, 118 Ill. 477. Johns Hopkins University v. Middleton, 76 Md. 186, 205, 206. Cotton v. Burkelman, 142 N. Y. 160, 163. Wood v. White, 4 Myl. & Cr. 460. In re Cotton’s trustees, 19 Ch. D. 624. It is conceded, that in expectation of the continuance of the income, and in reliance upon it, he incurred for his reasonable sustenance, during the period elapsing between the date of the last payment and the date of death, debts which remained unpaid and are in excess of the accrued income. The right of the trustees to make advancements in anticipation of income is denied, yet after income had been received, they are unfettered as to its disbursement if within the confines of the trust. If they had contracted with tradesmen during this period to furnish supplies necessary for his comfortable maintenance, unquestionably they could have recouped the indebtedness from the income in their hands at his death. King v. Stowell, 211 Mass. 246, 250. In re Sanderson’s trust, 3 K. & J. 497, 508. It would not subserve, but would defeat the plan of settlement, if the just expenses of past maintenance could not be paid, simply because death had intervened before funds could be transferred. The power conferred to carry out to the end this provision did not terminate until all disbursements necessary for the support of husband and wife during their joint lives had been satisfied from income in such manner as the trustees in their judgment deemed proper and expedient. It is consequently within their discretionary powers, which have not lapsed, to reimburse his estate, even to the extent of exhaust*109ing all of the income which had accrued, although not fully collected at the time of his decease.

If they choose to apportion any part to the heirs at law the share coming to Elizabeth S. Barnwell is to be paid to her and not to Boaz Duncan, her assignee. Low v. Pew, 108 Mass. 347, 350. Decree accordingly.