228 Mass. 290 | Mass. | 1917
This is an appeal from a decree allowing the first and final account of the survivor of the executors of the will of the appellants’ grandfather. The grandfather bequeathed the residue of his estate to the executors of his will in trust- to pay the income to his wife and son during the life of his' wife and then to pay over, convey and deliver the corpus to the son. It was found that the residue came to $63,300. Thereupon the executors paid to the wife $23,837.46 and to the son $39,462.54 on receiving from each a release under seal in which full satisfaction was acknowledged of all claims against the estate and the -executors. These releases were filed in the Probate Court on January 14, 1892. We assume that they were filed under the statute enacted to give executors, administrators, guardians and -trustees -who settle their accounts out of court a right to have -recorded in the Probate Court any instrument acknowledging performance of their duty. St. 1864, c. 93, now R. L. c. 162, § 48. The son (father of the
The appellants’ first contention is that the remainder over upon the death of the testator’s widow was a contingent remainder and never vested in their father. This contention is based upon the fact that no words of present gift are to be found in the clause of the will which creates the gift over. The gift over is. created by a direction to pay, convey and deliver upon the death of the widow. The appellants rely in this connection upon Eager v. Whitney, 163 Mass. 463, Heard v. Read, 169 Mass. 216, Crapo v. Price, 190 Mass. 317, Brown v. Wright, 194 Mass. 540, Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35, White v. Underwood, 215 Mass. 299. But there is no direction to pay, convey and deliver to any one but the son. The direction is to pay, convey and deliver to the son “to have and to hold.to him and his heirs and assigns forever,” that is to say, to the son in fee and absolutely. For the reason that there is no gift to any one but the son we do not reach in the case at bar the question which was decided in Welch v. Blanchard, 208 Mass. 523 (namely, that a remainder otherwise a vested remainder is not made a contingent one by reason of the fact that it is created without words of present gift by a direction to pay). Much less do we reach the question decided in the cases relied upon by the appellants, namely, the fact that a gift made by a direction to pay only is a fact which with other facts may make a remainder a contingent remainder. In the event that happened (namely, the son predeceasing the widow) the testator died intestate on the death of his widow so far as the great bulk of his property is concerned if the remainder over to the son was contingent upon his surviving his step-mother. It is plain that the son had a vested remainder in the $63,300.
The question in the case at bar therefore comes to this: Can
The next contention of the appellants is that their father could have avoided or rescinded the transaction and that this right of avoidance and rescission has come from him to them. This contention is based upon the fact that the widow was one of the executors and therefore the transaction by which the trust was terminated immediately upon its coming into existence was a transaction between trustee and cestui que trust to which the surviving executor was privy.. But a transaction between trustee and cestui que trust is not void. It is however a transaction which will be subjected to a strict scrutiny. Subjecting the transaction here in question to the strictest of scrutinies there is nothing to be.found in the record to warrant the inference that the widow overreached the son. Much less that the other executor was privy to a fraud practised by the widow upon the son. The son received nearly two thirds as much again as the widow. If the widow’s chance-of life was the normal one for a person of her age, the-then present value of her life estate could be computed by a reference to standard mortality tables. But the widow’s
The principles of law involved in this case are settled in this Commonwealth. For that reason we have not found it necessary to discuss the many cases from other jurisdictions relied upon by the appellants.
Decree affirmed with costs.