264 Mass. 68 | Mass. | 1928
In November, 1912, Emma L. Borden gave a sum of money to the Old Colony Trust Company as trustee, with directions to pay the income to her during her life and, after her death, to hold the property and any accumulation of income which should not have been actually paid to her-during her life in trust, and to pay the income to the Animal Rescue League of Boston. In this declaration she reserved the power by her last will to revoke the trust. In 1915 she paid a further sum to the same trustee upon a similar trust for the benefit of the Animal Rescue League of Fall River, with a like power of revocation. In August, 1919, she gave to the Rhode Island Hospital Trust Company certain Liberty bonds to hold in accordance with the terms of a declaration of trust similar in its provisions to those above mentioned, but for the benefit of the Providence Animal Rescue League. Her will was dated November 20, 1920, and a codicil thereto was dated June 22, 1922; one of the pecuniary legacies was to the Animal Rescue League of Fall River, and there is nothing in the will or circumstances to indicate that this legacy was intended to be in substitution for the gift in trust for its benefit made during her life.
The declarations of trust were valid and created vested rights in the beneficiaries until revoked. The animal rescue leagues were not to receive the income of the trust funds until the death of the testatrix. There is no expression in the will and no fact stated in the record to indicate that she desired to deprive them of the benefits which would accrue under the declarations of trust. Her purpose seems to have been to do more for them. If the words in the residuary clause, “all . . . property . . . over which I have any power of testamentary disposition,” are given their natural meaning, they do not revoke the trusts declared by the testatrix. She had no power of testamentary disposition over any of the property held in trust until the trusts were revoked. Courts have held in many cases that a general residuary clause includes any estate of which the testator has a general power of appointment unless a contrary intention is disclosed by the will. But in the case at bar the appointment had already been made by the declaration of trust, and the power reserved was one of revocation only. Until a trust is revoked, no new appointment or gift can be made, and language which would readily indicate an intention to appoint would not indicate an intention to revoke. “A power
The plaintiff is instructed that it is its duty as trustee under the declarations of trust to continue to hold the funds upon the trusts declared therein.
Ordered accordingly.