Phelps v. Phelps

| Mass. | Jan 3, 1888

Morton, C. J.

The statement of facts upon which the case is submitted to the court is imperfect, and does not contain enough to enable us to determine the rights of the parties. It has been held that, under the will of Willis Phelps, his son John W. Phelps does not take the income of one half of the residue absolutely, but it comes into his hands charged with a trust for the support of his son- Willis Phelps, who could enforce its due appropriation in part for his benefit in a court of equity. Phelps v. Phelps, 143 Mass. 570" court="Mass." date_filed="1887-02-24" href="https://app.midpage.ai/document/phelps-v-phelps-6422347?utm_source=webapp" opinion_id="6422347">143 Mass. 570.

Under the terms of this will, John W. would have the right to appropriate the whole of the income coming to him for the support of Willis, if it was reasonably needed for that purpose. The plaintiff’s bill proceeds upon this view of the will, and alleges that “ the income of one half thereof is largely in excess of the amount needed for the proper support of the said Willis Phelps, .... and largely in excess of any sum by the said John W. used or appropriated therefor.” But the statement of facts does not show what the amount of the trust fund is, what the income is, what the age or condition of Willis is, or what is needed for his support, or whether the whole or any part of it has or not been appropriated for that purpose. It is not the right of parties or their counsel to submit a case upon a statement of facts which is imperfect and inconclusive in itself, with an agreement that if, upon any facts, the plaintiff’s case can be maintained, the case may be referred to a master or assessor to determine whether such vital facts exist. This is what the parties have attempted in this case. It is asking the court to pass upon a case which may never arise, and to decide questions which may be purely speculative. Smith v. Cudworth, 24 Pick. 196.

We can only decide now that upon the facts stated the plaintiff cannot maintain” her bill. Whether she can do so upon any state of facts cannot be decided until the facts are settled. But, as the case was probably presented in this form under a misapprehension as to the rights of the parties, we are of opinion that the just and proper result is that the reservation and case stated should be discharged. Old Colony Railroad v. Wilder, 137 Mass. 536" court="Mass." date_filed="1884-09-03" href="https://app.midpage.ai/document/old-colony-railroad-v-wilder-6421399?utm_source=webapp" opinion_id="6421399">137 Mass. 536. Order accordingly.