282 Mass. 130 | Mass. | 1933
These are two appeals in equity by certain life beneficiaries of trusts under the will of Patrick Kearins, late of Medford, from decrees entered in the Probate Court upon petitions of the trustee for instructions. All the appellants are children of said decedent.
The first petition alleges that by paragraph 13 of said will the testator devised his homestead in Medford and Somerville, Massachusetts, to his trustees to be held “in trust for the benefit of my daughters . . . with power on the part of my said daughters to occupy said homestead, according to the provisions and requirements set forth in paragraph twenty of this will”; that said homestead is now being occupied by two of said daughters, Mary Louise Kearins and Agnes Elizabeth Kearins; that by reason of said paragraph 13 relating to the occupancy of said homestead “there is no income accruing to your petitioner as trustee” with which to pay present and future taxes, insurance and repairs on said trust estate; that the premises in question have been sold for nonpayment of real estate taxes assessed for the year 1929; that the taxes assessed for 1930 and 1931 are not paid and the petitioner as trustee has no funds with which to pay said taxes. All the material allegations of the petition are admitted by the appellants. The petitioner prays that he may be instructed (1) “whether he may use funds derived from other trusts under the same will of the testator Patrick Kearins to pay for the taxes, insurance, repairs, etc., on the said homestead [described by said paragraph 13] and, if so, from what trusts and in what proportions”; and (2) whether “he may exact from those who occupy the said homestead, an amount, as rent,
The second petition alleges that by paragraph 6 of said will there was given in trust for Madeline Veronica Kearins, a daughter of the testator, for life, “with remainders over, according to the provisions of paragraph 20 of the will,” certain real estate therein described; that Madeline Veronica Kearins died on May 6,1929, unmarried and leaving no issue surviving her; that paragraph 20 of the said will in part provides that “Upon the death of any of said beneficiaries leaving issue, I direct my Trustees to continue to pay the net income of said trust to said issue until the youngest of said issue living at the time of the death of said beneficiary shall have become twenty-one (21) years of age, such issue taking by the right of representation and per stirpes, if they are not of the same degree of kindred to me. In the case of each trust, upon the youngest of said issue reaching the age of twenty-one (21) years, the trust property shall be paid over to them, free and discharged of all trust. Upon the death without issue, of any beneficiary above named, the share held for such beneficiary shall be divided up as nearly equally as may be among the surviving beneficiaries above named, if any of them are surviving. And if none of them shall be surviving at the time of the death of said beneficiary, then to my heirs at law determined as of the death of said beneficiary.” All the material allegations of the petition are
In the first case under paragraph 13 of the will the trustee is directed to hold the premises described therein in trust for the benefit of certain named daughters, “with power on the part of my said daughters to occupy said homestead, according to the provisions and requirements set forth in paragraph twenty of this will.” It is plain that under this power the daughters named were given a bene-'
In the second case we think it is the clear meaning of paragraph 20 of the will that the trust with respect to said real estate should not terminate on the death of the widow, and that it was the intention of the testator that the property should continue to be held by the trustee as a part of the trust estate. That such was his intention is manifest when due weight is attributed to all the language of the will. Boston Safe Deposit & Trust Co. v. Stratton, 259 Mass. 465, 470. In support of this view it is noticeable and significant that there is no direction to the trustee to pay over, distribute, transfer or convey the trust estate upon the death without issue of any named beneficiary. The provision of the will that “Upon the death without issue, of any beneficiary above named, the share held for
It follows that paragraphs numbered (1), (2), (3) and (6) of the decree of the Probate Court should be affirmed. Paragraphs numbered (4) and (5) are modified so that they are limited in their application to present circumstances and are not to be construed to provide for situations arising in the future consequent upon the death of Sarah P. Conlan or Rose Mary Conroy, leaving issue, followed by the death of one of the other children of the testator without issue. As so modified the decree is
Affirmed.