304 Mass. 6 | Mass. | 1939
The single contention of the appellant underlying both of these appeals is that the trust of the residue under the will of O. Atherton Shepard, late of Brookline, is void for indefiniteness.
The will as amplified by a codicil places the entire residue, real and personal, in trust for these purposes: "The net income from said residue is to be separated into three parts, for convenience designated as funds A, B and C. Divisions of this income shall be made by my trustees and their division shall not be questioned except in case of fraud.” Fund A is to be paid to the testator’s widow and at her death, or if she does not survive the testator, is to be added to fund B. "Fund B shall be paid to my daughters, Margaret S. Newton, Dorothea S. Bassett and Hilda G. Shepard, in equal amounts to each, payments being made in estimated quarterly amounts if each or either desires and adjusted annually. The issue of my said daughters shall succeed to the rights of its parent in said Fund B by right of representation. In the event of the death of any of my daughters without leaving issue their portion of Fund B shall be divided equally among my living daughters or their living issue, in case of their death, but if neither daughters nor issue living Fund B shall be added to Fund A and disposed of in same manner as Fund A.” Fund C is to be accumulated and used at the discretion of the trustees for the benefit of the testator’s daughters, "paying such portion as they [the trustees] may deem best to either of my daughters who in the trustees’ judgment may most need it for her or their proper support, and at such times as said trustees may elect, and their decision shall be final as to said disposition” so long as either of the testator’s brothers or his widow shall serve as trustee or, if no one of these is serving, "if my said daughters or two surviving daughters shall agree to” an unequal distribution. The trustees are to have power to add any or all accumulated income in this fund “to the principal held by the trustees whenever the trustees shall determine.” If the widow shall survive all the daughters fund C is to be added to fund A. It is fur
No contention is made that the provisions applicable to fund A or to fund B are in themselves indefinite, but the appellant does contend that it is wholly discretionary with the trustees how much of the income they will allot to these funds; that they may allot to them only trifling amounts and so leave the bulk of the income to fund C, as to which their discretion is broader; and that in this way the trustees are given an unregulated control both over the selection of the beneficiaries and over the amounts to be paid to them, so that there are no terms of the alleged trust as to income which the trustees are bound to observe or which the court can be called upon to Enforce.
We are not convinced that this trust is too vague to be enforced. Because of the death of the testator’s wife before his death it is unnecessary now to consider fund A. We assume, without deciding, that the allocation of income to funds B and C is not required to be equal. The following discussion proceeds upon that assumption. The choice which the trustees may exercise in allocating income between these two funds is little or nothing more than a choice between the equal distribution of income among the testator’s daughters and their issue by representation
This is not a trust for an indefinite class. The class of beneficiaries of income payments is limited to the testator’s daughters and their issue and the class of beneficiaries of the accumulations of income which the trustees have power to add to the original trust fund reaches no further than to include the testator’s heirs. The American Law Institute states the rule thus, “There can be a trust of which the beneficiaries are the relatives of a designated person among whom the trustee is authorized to select who shall take and in what proportions.” Restatement: Trusts, § 121. Kemp v. Kemp, 5 Ves. 849. Hitch v. Leworthy, 2 Hare, 200. Tabor v. Brooks, 10 Ch. D. 273. Portsmouth v. Shackford, 46 N. H. 423. See O’Rourke v. Beard, 151 Mass. 9, and cases cited in Bogert, Trusts & Trustees, § 162.
The trust here assailed is sufficiently definite as to the property, the beneficiaries, the nature of their interests,
Costs of this appeal as between solicitor and client are to be in the discretion of the Probate Court, to be determined in accordance with the principles laid down in Frost v. Belmont, 6 Allen, 152, 164, 165, Boynton v. Tarbell, 272 Mass. 142, 145, and Lewis v. National Shawmut Bank of Boston, 303 Mass. 187, 191.
Decrees affirmed.