318 Mass. 482 | Mass. | 1945
This is an appeal from a final decree entered upon a petition in equity under G. L. (Ter. Ed.) c. 215, § 6B, inserted by St. 1935, c. 247, § 1, brought by the trustees under the will of Philip J. Blank, who died in 1923, leaving his widow, Marguerite A. Blank, one of the petitioners, two brothers, a sister, and two children of a deceased sister. The judge found all the facts to be as stated in the petition, and that Marguerite A. Blank had released the power of appointment given to her by the will. He entered a decree that the residue of the trust is to be distributed under G. L. (Ter. Ed.) c. 190 at the death of Marguerite A. Blank to those who are determined as of that time to be the heirs at law of the testator.
The first seven clauses of the will provided for the appointment of the executors and trustees, devised certain real estate to his brothers, bequeathed $1,000 to a friend, and gave the household effects and a life estate in the homestead — later changed by a codicil to a fee — and a legacy of $2,000 to his widow. The eighth clause established a trust in a parcel of real estate for the benefit of his niece, Gretchen Blank. She had the right to occupy it, or to receive the rent, or to have it sold and to receive the income from the proceeds. The property upon her death was to become a part of the residuary trust. By the ninth clause of his will the testator created a trust of the residue for the benefit of his wife, who was to receive the income and so much of the principal as might be necessary for her comfortable support. After her death, the trustees were to distribute the trust fund among five classes of legatees,
The respondent 'Mr. McKelleget, who has been appointed the next friend of all persons not ascertained or not in being who may have an interest in the said estate, contends that the petitioners have no right to appeal. Only those who are aggrieved by an “order, decree or denial” of the Probate Court may appeal to this court. G. L. (Ter. Ed.) c. 215, § 9. Under that statute a person is aggrieved if some pecuniary interest or personal right of his has been adversely affected, or if some public or official duty of his has been restricted or impaired by such order, decree or denial. Lawless v. Reagan, 128 Mass. 592. Monroe v. Cooper, 235 Mass. 33. Weston v. Fuller, 297 Mass. 545. Bolster v. Attorney General, 306 Mass. 387, 389. Ballard v. Maguire, 317 Mass. 130. The present proceeding is not a petition for instructions, where the petitioners stand indifferent as to which of the conflicting contentions of those interested in the estate shall prevail. Neither is it a petition of interpleader, where the petitioners are merely stakeholders. This petition seeks the interpretation of a will concerning a matter directly connected with the proper administration of a trust by the petitioners. They are bound to conserve the assets of the trust and to avoid unnecessary expenses. They are re
The widow released the power of appointment over the balance of the money that might remain in the residuary trust after the payments which were to be made upon the termination of the trust. G. L. (Ter. Ed.) c.-204, §§ 27-36, inclusive, inserted by St. 1943, c. 152. She having given up her right to exercise the power, the question arises
It is a general rule that the heirs of a testator are to be determined as of the time of his death. It is the general rule that wills containing provisions for the distribution of property among the heirs of a testator upon the termination of legal or equitable fife estates are to be construed as vesting interests in the heirs at the death of the testator. Gilman v. Congregational Home Missionary Society, 276 Mass. 580. Robertson v. Robertson, 313 Mass. 520. Tyler v. City Bank Farmers Trust Co. 314 Mass. 528. National Shawmut Bank v. Joy, 315 Mass. 457. But this rule is one of construction, which is to be followed only in so far as it aids in ascertaining the intent of the testator, and the rule must not be permitted to defeat the intent of a testator as shown by an examination of the entire will. Old Colony Trust Co. v. Washburn, 301 Mass. 196. Robertson v. Robertson, 313 Mass. 520. Agricultural National Bank v. Miller, 316 Mass. 288. His intent when ascertained must be given effect unless prevented by some positive rule of law. That is the cardinal principle underlying the interpretation of. wills to which all other canons of interpretation must yield. Ware v. Minot, 202 Mass. 512. Fitts v. Powell, 307 Mass. 449. Agricultural National Bank v. Miller, 316 Mass. 288.
In ascertaining the intent of the testator the structure of the will and the plan for the disposition of his property are to be considered together with the circumstances attending the execution of the will. The testator left no issue. His first thought was for the welfare of his widow. He gave her the home and its contents and a small bequest. He then provided that she should have the income of the residuary trust and also such part of the principal of that trust as
One more matter remains to be considered. The trust
It follows that the final decree must be modified by striking out the last sentence in the decree and substituting therefor the following: After hearing and consideration,
So ordered.