Proctor v. Proctor

141 Mass. 165 | Mass. | 1886

C. Allen, J.

The income from the Produce Exchange Association, which the testator directs to be paid to his wife, “ to be for her support and the support of my children,” is to be received by her on a trust, and the children have a vested beneficial interest in it. Looking at other parts of the will, it appears that he gave to her the income from another piece of property, namely, his wharf property and privileges at the Willows on Salem Neck, without mentioning any purpose in relation to the children; which is. a significant circumstance, going to show that, in respect to the income from the Produce Exchange Association, he intended a benefit to his children different from what they might incidentally derive from an absolute gift to the mother. Loring v. Loring, 100 Mass. 340. Still more significant are the provisions looking to a possible failure or termination of this particular trust, in case the trustees should decline to assume the carrying on of the business, or should at any time, in their discretion, think it better to wind it up, or in case the testator’s brother should die. In either of these events, which might happen at any time, the business and property are to be sold, and the proceeds thereof, with all the accumulations, divided equally between the wife and children who may then be living, and the issue of any deceased child by right of representation. In view of these provisions, which throw light upon the meaning of the testator in using the words which provide for the disposition of the income, it is impossible to suppose that he meant to give to her an uncontrolled power or authority over the provision thus made for the children. See Chase v. Chase, 2 Allen, 101, and cases cited.

A somewhat more difficult question arises, whether the plaintiff has lost the benefit of this trust by removing to Malden, under the circumstances stated in the report. There is no doubt that, in many cases, children lose their claim to support, if they become forisfamiliated, that is, cease to be members of, or to belong to, the establishment contemplated by the testator. Lewin on Trusts, (8th ed.) 139. It is contended on the part of the defendants that the present case falls within this rule. But each case must depend on its own circumstances. There is nothing in the will, or in the facts before the court, to show that the testator contemplated that his family should remain together in a boarding-place in Beverly. He is described in the will as of Salem, and, in the absence of anything to show the contrary, we may assume that he lived there at the time of making his will. It does not appear that, during his life, he maintained his family in a boarding-place. The inference is, that his widow, at the time when the plaintiff left her, was not maintaining an establishment, or family home, such as the testator may fairly be deemed to have contemplated when making his will. There is far less reason for holding children bound to stay with their mother, boarding in a neighboring town, than when the family home is preserved. Besides, in the present case, special facts occurred to make it unpleasant for the plaintiff to remain with her mother. It is not found that this was especially by the plaintiff’s fault. Whether fully justified or not, it may at least be said that she had some reason for leaving her mother’s boarding-place. Under all these circumstances, the plaintiff should not be held to have lost her claim for support, by reason of forisfamiliation. Ordinarily, one who is to be supported under a provision for that purpose in a will or deed is not limited to live at a particular place. Parker v. Parker, 126 Mass. 433, and cases cited. There is nothing in the will which expresses any clear intention to make the provision for the daughters dependent on their continuing to live with their mother. There is no suggestion or hint in the language of the will that the testator expects them all to live together. When he speaks of his family, it is merely to show what persons are intended. On the whole, looking at the whole will in the light of all the facts before us, and of the decided cases, we are of opinion that it is right to allow to the plaintiff one third of that portion of the income from the business of the Produce Exchange Association which the testator directed to be paid to his wife.

Decree accordingly.