Each of the wills of Richard W. Symons and his wife Edna H. executed April 27, 1955, gave the residue to the trustees under a revocable and amendable inter vivas trust established by them under date of ‘ ‘ September 13, 1945, as amended.” On November 19, 1955, *367 Richard and Edna as settlors, and Richard as one of the trustees, signed and acknowledged an instrument purporting to amend the trust by altering the disposition of the trust property to be made after the death of both settlors. The trust provided for amendment by a written instrument signed and acknowledged by the settlors and the trustees. The other trustee, Second Bank-State Street Trust Company, signed and acknowledged the amending instrument on November 23,1955. Richard and Edna, also on November 19, 1955, executed codicils to their wills to name a co-executor and each codicil ratified and confirmed the will in all other respects.
Following the death of Edna on November 20, 1956, and of Richard on March 13, 1958, the bank, as executor, asked to be instructed, under each will, whether the residue passed to the trustees to hold under the trust as amended, or, if not, then subject to the terms of the unamended trust, or, alternatively, how it should be distributed. The probate judge consolidated the cases, and, the facts being admittted and found, reserved and reported the cases under Gr. L. c. 215, § 13. We hold for reasons stated below that under each will there was, as all the respondents contend, an effective residual gift to the trustees to hold under the trust as amended on November 23, 1955.
It is to be observed at the threshold that the doctrine of incorporation by reference is inapplicable. Any intent to incorporate into the wills the dispositive provisions of the trust and thus to make them dispositive parts of the wills was expressly negatived. Each of the residuary clauses provided that the fund paid to the trustee was “to be held, administered, and distributed solely under the provisions of such indenture, and in no way as trustee under this will nor as a trustee subject to appointment by or jurisdiction of any probate or other court.” See Restatement 2d: Trusts, § 54, comment k. It is therefore immaterial that at the time of the execution of the codicils the terms of a proposed, but incompleted, amendment to the trust were set out in writing. Compare
Newton
v.
Seaman’s Friend Soc.
*368
No amendment to .the trust existed until November 23, 1955, when the second trustee executed and acknowledged the instrument as required by the trust indenture.
Phelps
v.
State St. Trust Co.
We agree with the suggestion that such a gift as this “ stand[s] on its own merits, to be compared to a gift to a corporation or any other entity, and as such wholly distinguishable from an attempted incorporation into the will of the terms of the trust as to additional property. ’ ’ Annotation, 21 A. L. R. 2d 223. Shattuck, Inter Vivos Trusts in Massachusetts, 26 B. U. L. Rev. 437, 458. Such a gift is no less valid because of the reservation in the settlor of the power to amend or revoke the trust.
Old Colony Trust Co.
v.
Cleveland,
The
Cleveland
opinion, however, states (p. 382) that “the will ... could not, give the residue in trust for purposes which . . . remained to be defined by a later amendment of the trust deed.” We have recently noted
(Loring
v.
Clapp,
It is to he noted that the issue was not squarely raised in the Cleveland case. The underlying controversy was whether the beneficiaries under the trust deed should be paid twice, “once out of the original trust fund . . . and again out of the fund passing under the will” (p. 382). The briefs in the Cleveland case show no contention that the subsequent amendment was effective under the will.
We agree with modern legal thought that a subsequent amendment is effective because of the applicability of the established equitable doctrine that subsequent acts of independent significance do not require attestation under the statute of wills. Scott, Trusts (2d ed.) § 54.3. McClanahan, Bequests to an Existing Trust, 47 Cal. L. Rev. 267, 287, 292-294, and articles cited note p. 267. Palmer, Testamentary Disposition to the Trustee of an Inter Vivos Trust, 50 Mich. L. Rev. 33, 55-59. This is the view of the Restatement 2d: Trusts, § 54, comment i, and reporter’s note. Compare Lauritzen, Can a Revocable Trust be Incorporated by Reference, 45 Ill. L. Rev. 583, 600-609.
The decided cases disclose a “confused and confusing area of the law.” 47 Cal. L. Rev. 267, 291. Some of the decisions, however, give support to the doctrine of independent significance. In
Swetland
v.
Swetland,
102 N. J. Eq. 294, 297, although the trust was not amended subsequent to the will, the court, in sustaining a pour-over provision, approved the lower court’s statement that “ [t]he trust to which this bequest is added is not theoretical, nebulous, intangible or incapable of identification, but exists in fact, and the trustee-legatee is as distinct and definite an entity as would have been an individual or corporation legatee.” Likewise, the court in
In re Estate of York,
95 N. H. 435, 437, where also there was no subsequent amendment, held that a gift from a will to a trust “is equally sustainable according to the view that the inter vivas trust is a fact ‘having significance apart from the disposition of the property bequeathed.’ ” See
In
re
Ivie’s Will,
155 N. Y. S. 2d 544, but compare with it
President S Directors of Man
*370
hattan Co.
v.
Janowits,
260 App. Div. (N. Y.) 174. See also
Matter of Rausch,
The creation and amendment of an amendable, revocable inter vivas trust were necessarily recognized as facts of independent significance in
National Shawmut Bank
v.
Joy,
Dispositions to persons employed at the testator’s death have been held valid in our decisions without reference to the possible objection of action of testamentary significance subsequent to the will.
White
v.
Massachusetts Inst. of Technology,
Scott, Trusts (2d ed.) § 54.3, pp. 376-377, observes, “It is true that the testator is thereby enabled to change the testamentary disposition without executing codicils to his will. This is, however, what he does where he bequeaths the contents of a room or of a safe-deposit box, since he can modify the contents from time to time by removing or adding articles. The same thing is true where he bequeaths property to persons in his employ at the time of his death . . .. Indeed, there seems to be no greater objection than
*371
there is to the whole doctrine which permits a testator originally to make a disposition by reference to a living trust, the terms of which are not stated in the will. The test is not whether the facts are subject to the control of the testator, but whether they are facts which have significance apart from the disposition of the property bequeathed.” The reasons for adoption of the rule of the Eestatement are persuasive. The pour-over device is important in modern estate planning. Casner, Estate Planning (2d ed.) pp. 83-106. The underlying purpose of the statute of wills against frauds is secured in the formalities attendant upon the execution of trusts and the solemnity of the actual transfer of property to trustees. 47 Cal. L. Rev. 267, 293-294, 98 Trusts & Estates, 949, 950-951. Contrast
Thayer
v.
Wellington,
The growing acceptance and approval of the device are shown by the enactment in eighteen States of statutes which authorize it in some form. 1 It is particularly significant that in sixteen of these States (all save Connecticut and Oregon) the statutes validate gifts by will to trusts which have been amended after the will was executed.
The long established recognition in Massachusetts of the doctrine of independent significance makes unnecessary statutory affirmance of its application to pour-over trusts.
In each case a decree is to be entered in the Probate Court that the trustee is to administer and distribute the funds received from the executor in accordance with the terms of the amended trust.
So ordered.
Notes
Colo. Rev. Sts. § 152-5-45 (Seas. Laws 1959, e. 286). Conn. Gen. Sts. tit. 45, c. 785, § 45-173 (1958 Rev. and amendment Supp. 1959). Del. Code Anno, tit. 12, § 111 (Supp. 1958). Pla. Laws of 1959, e. 59-57. Ill. Rev. Sts. c. 3, § 194a (1959). Ind. Sts. Anno. § 6-601 (j) (Burns 1953). Md. Anno. Code, art. 93, §§ 350A, 350B, inserted by Md. Laws of 1959, c. 612. Miss. Code Anno. tit. 5, c. 4, § 661.5 (Supp. 1958). Mont. Laws of 1959, c. 185. Neb. Rev. Sts. § 30-1806 (Supp. 1959), as amended by Neb. Laws of 1959, c. 127. N. C. Gen. Sts. § 31-47 (Supp. 1959). Ore. Bev. Sts. § 114.070 (1957) (Ore. Laws of 1957, c. 345). Pa. Sts. Anno. tit. 20, § 180.14a (Purdon Supp. 1959). R. I. Gen. Laws § 33-6-33 (Supp. 1959). Va. Code § 64-71.1 (Supp. I960). Wash. Laws of 1959, c. 116. Wis. Sts. Anno. § 231.205 (Supp. 1960). Wyo. Comp. Sts. § 6-310 (Supp. 1957).