321 Mass. 638 | Mass. | 1947
This is a companion case with Fiduciary Trust Co. v. Mishou, also decided this day. Most of the pertinent facts appear in that ease and will not be restated here. That case was a petition by the trustee under the will of Martha S. Parker for instructions primarily as to the distribution
After the death without issue of Charles T. Parker in 1912, he being the first to die of Mrs. Parker’s three children, the trustees, apparently proceeding upon the theory that all the limitations of Mrs. Parker’s will were valid, divided that portion of the income which Charles had been receiving equally between the two surviving children, James and Mary, and after James died in 1930, the entire income was paid to Mary. Seventeen trustee’s accounts were allowed showing these payments. The petitioner in this case is the executrix of the will of Charles. It is her contention that the provisions of Mrs. Parker’s will by which, upon the death of a child without issue (or upon failure of issue), income which that child had been receiving would be shifted to another child or to the issue of a deceased child were invalid as to income derived from property traceable from the trust under the marriage settlement of 1851 because in violation of the rule against perpetuities; that the income involved in these augmenting limitations, in so far as derived from such property, should have gone to the three children and their estates under the will of their father, Richard T. Parker, in the proportions of three twentieths to the estate of Charles, eleven twentieths to James and after his decease to his estate, and six twentieths to Mary, the last child to die. The present petition has for its object the revocation of the decrees allowing the trustee’s accounts in order that the necessary corrections may be made, and that the trustee may be ordered to pay out of the fund in its hands a sum which, it is contended, these corrections will show has been paid to Mary at the expense of the estate of Charles. The judge entered a decree dismissing the petition.
In our opinion the position of the petitioner is to a great
It follows that the limitations over of income upon the deaths of Mrs. Parker’s children (or the failure of their issue) were invalid as to that proportion of such income as
¿But it is argued that the decrees allowing the trustee’s accounts cannot now be revoked because the items of all the accounts (except one) that were allowed while G. L. (Ter. Ed.) c. 206, § 24, was in force before it was changed by St. 1938, c. 154, § 1, were “finally determined and adjudicated,” and the accounts that were allowed after the change in the statute, according to the terms of the statute as changed, “shall not be impeached except for fraud or manifest error.” See New England Trust Co. v. Paine, 317 Mass. 542, 544-545. But § 24 contained a provision that such notice as the court might order that an account was to be adjudicated must be given “to all parties,” as the statute read before the change, or “to all persons interested,” as it read after the change. Citations issued on accounts one to five, inclusive, required notice by delivery or by publication and mailing “to all known persons interested.” The citations on accounts six to seventeen, inclusive, required notice by delivery or by publication and mailing “to all persons interested.” The returns upon all the citations recited that notice was given by publication and mailing. In fact no notices on accounts six to seventeen, inclusive, were mailed to the petitioner. She was a person interested. Notice should have been mailed to her. A positive requirement of G. L. (Ter. Ed.) c. 206, § 24, both before and after it was changed by the act of 1938, was not observed as to accounts six to seventeen, inclusive. It follows that as to the petitioner these accounts were not “finally'determined and adjudicated” and the provision of the statute as changed that after allowance accounts should “not be impeached except for fraud or manifest error” did not apply to them.
No doubt the returns upon the citations were prima facie
Account five was allowed without being “finally determined and adjudicated” under § 24 as that section then stood, and since the decrees on the subsequent accounts are to be revoked, account five will be reopened for the correction of errors at the new hearing upon the subsequent accounts. New England Trust Co. v. Paine, 317 Mass. 542, 544-547.
Accounts one to four, inclusive, stand differently. We fail to discover any substantial evidence sufficient to overcome the evidence furnished by the return of service and to prove that notice was not mailed to the petitioner on these accounts. And they were “finally determined and adjudicated” under the former § 24. The errors which it now seems existed in these accounts are such that they can be ascertained only by a most elaborate reexamination of both fact and law. This sufficiently appears both from this opinion and from the opinion in the companion case of Fiduciary Trust Co. v. Mishou. They are not the type of error referred to as “manifest error” in the present § 24.
It is argued by certain respondents that the petitioner is barred by loches. We think she is not. It is true that she delayed many years before taking action. But there is no satisfactory evidence that during this time she had any knowledge of the indenture of 1851 upon which her rights depended. Neither is there substantial proof that any of the parties was prejudiced in securing evidence or otherwise. The petitioner disclaims any right to charge the trustee out of its own property. She seeks no remedy against anyone other than that a part of the trust fund remaining in the trustee’s hands be diverted to her to the extent of overpay-ments previously made to Mrs. Taylor that should have been made to the estate of the petitioner’s husband. There were undoubtedly difficulties in securing evidence, but whether these would have been less if the petitioner had pro.ceeded more promptly remains a matter of conjecture. It is settled that mere delay does not constitute loches. West-hampton Reservoir Recreation Corp. v. Hodder, 307 Mass. 288. Norton v. Chioda, 317 Mass. 446, 452. Goldstein v. Beal, 317 Mass. 750, 759.
There is no merit in the further contention that this petition to revoke decrees allowing trustee’s accounts of the trust under Mrs. Parker’s will is barred by the special statute of limitations applicable- to the estate of Mary Martha Taylor. The petitioner is not suing as a “creditor” of Mrs. Taylor. G. L. (Ter. Ed.) c. 197, § 9, as amended by
We have considered all the contentions of the parties and have discussed such of them as seemed to call for discussion.
The result is that the decree dismissing the petition is reversed, and a decree is to be entered revoking the decrees allowing the sixth to the seventeenth accounts, inclusive, not for the purpose of imposing any liability upon the accounting trustees or any other persons payable out of their own assets, but solely for the purpose of showing any portion of the fund now in the hands of the trustee applicable under the decisions in this case and in the companion case of Fiduciary Trust Co. v. Mishou to reimburse the estate of Charles T. Parker, as between that estate and^the estate of Mary Martha Taylor, for overpayments, if any, of income to Mary Martha Taylor made during the periods covered by accounts six to seventeen, inclusive. See Harris v. Starkey, 176 Mass. 445; Cleaveland v. Draper, 194 Mass. 118; Jones v. Jones, 223 Mass. 540, 544. A decree in this form will fully serve the petitioner’s purposes as declared and limited in her petition. The Probate Court is to hear the issues raised on those accounts at the time of the hearing on the decree after rescript in Fiduciary Trust Co. v. Mishou, in order that pending issues in these matters may be deter
So ordered.