317 Mass. 253 | Mass. | 1944
This action of contract is brought to recover $1,000 under an alleged contract described below. A judge
The following facts are disclosed by the evidence: The defendant’s testator was the father of John E. Whitney, Edward C. Whitney, Francis W. Whitney and Estelle M. Whitney. He survived his wife, who was the mother of these children. By a will dated August 17, 1929, she devised her “land and buildings” located on Fern Street, in Lexington, to her sons John (the plaintiff here) and Edward, in trust, for the use and benefit of her daughter Estelle for and during the term of her natural life, with directions to apply the income therefrom to her maintenance, and upon the death of Estelle to her sons John, Edward and Francis in equal shares. The testatrix devised the residue of her estate to Estelle, who has been a cripple since childhood. There was evidence that the defendant’s testator wanted to buy the Fern Street property, that the plaintiff and his brothers agreed to sell it to him for $3,000, and that a mortgage would be executed to pay that sum. The evidence discloses that by quitclaim deed dated October 24, 1938, Estelle and her three brothers, two of them as executors and trustees as well as individually, conveyed all their right, title and interest in the premises to their father, the defendant’s testator; that on October 25, 1938, he executed a mortgage of the premises for $3,000 in statutory form to his three sons individually; that in the deed to their father John and Edward were described as executors and trustees of their mother’s will, Estelle as cestui que trust under the will, and John, Edward and Francis as devisees under the will. All signed the deed, the executors and trustees in those capacities and individually. The will conferred a power of sale of the real estate of the testatrix upon the executors of her will. The plaintiff testified in direct examination that at a conference prior to the execution of the deed and mortgage Mr. Chapman, the attorney, told him that he “would collect $1,000” and that three or four months “after the death of the defendant’s testator he made a demand for the $1,000” as his one-third interest.
The mortgage back was for $3,000, and it was provided
The defendant filed certain requests for rulings, among them the following: “1. The evidence is insufficient to warrant a finding for the plaintiff”; and “7. The evidence is sufficient to warrant a finding for the defendant.” These requests were denied by the judge who made the following findings of fact: “I find as a fact that prior to October 25, 1938, the plaintiff was the owner of a one-third undivided interest in certain real estate situated in Lexington, that on or about said date he agreed to convey said interest in said property to his father, the defendant’s testator, for the sum of one thousand dollars ($1,000) which was to become due and payable if the defendant’s testator should attempt to sell, assign or transfer said property or upon the death of the defendant’s testator. I find as a further fact that said obligation was not represented by a note but was incorporated in a mortgage instrument executed by the defendant’s testator on October 25,1938, and recorded in Middlesex South Registry of Deeds on November 16, 1938; that upon the death of the defendant’s testator, the plaintiff made demand for payment which was refused. I find also that the writ is in proper form and that the plaintiff is entitled to recover $1,000 together with interest.”
The first requested ruling of the defendant raised the issue whether the evidence was sufficient to warrant a finding for the plaintiff. That is a question of law, and we are of opinion that the evidence was not sufficient so to warrant. The only consideration for the conveyance of the trust res to the defendant’s testator was the covenant contained in the mortgage back to pay $3,000 to the three remaindermen, whose interests thereunder were not vested in possession. The conveyance by the executors and trustees was without any payment or promise of payment to them for the estate represented by them, and was a breach of trust in which
It is settled that where the testator has fixed the time for the termination of the trust, and where it is active and its purposes and objects have not been fully accomplished and its termination would not best accomplish the testator’s intent, the trust cannot be terminated even with the approval of all parties in interest. Claflin v. Claflin, 149 Mass. 19, 22-23. Young v. Snow, 167 Mass. 287, 288. Ames v. Hall, 313 Mass. 33, 37. In Ellis v. Hunt, 228 Mass. 39, 45, the court said that “A trust not incapable of execution and not accomplished cannot be extinguished by mere agreement.” See also McCoy v. Natick, 237 Mass. 99, 102; Forbes v. Snow, 245 Mass. 85, 93; Springfield Safe Deposit & Trust Co. v. Friele, 304 Mass. 224, 228; Damon v. Damon, 312 Mass. 268, 271; Ames v. Hall, 313 Mass. 33, 37; and cases cited in 123 Am. L. R 1427-1450. The case of Partridge v. Clary, 228 Mass. 290, 293, is distinguishable. In that case the court was in fact critical of the action of the trustee who had agreed with the parties to terminate the trust consisting of personal property, saying that he “had no right to end the trust and distribute the fund when he did.” But in view of the facts that nineteen years had elapsed from the1 time that the transaction took place, that the trust had terminated in the meantime, and that there was nothing to show that the beneficiaries had not each received the value
The trust in the present case was valid when established. Obviously its purposes have not been accomplished. There is no impracticability in law in the further and complete execution of the trust, and the time fixed for its termination has not arrived. See Forbes v. Snow, 245 Mass. 85, 93. The transaction in question, that is, the conveyance of the trust estate by the executors and trustees without consideration to the trust estate, with the resultant defeat of the intent of the testatrix who devised it in trust, was one that no court in this jurisdiction would sanction even upon the request of the parties in interest. Forbes v. Snow, 245 Mass: 85, 93. In the circumstances of the present case, the transaction in question was a perversion of the trust. See Corkery v. Dorsey, 223 Mass. 97, 103. The legal title to the trust res in question vested in the trustees named in the will of the testatrix, subject, however, to the exercise of the power of sale conferred therein upon them as executors. The conveyance in question by the executors was the sole effective means of passing legal title to the property to the defendant’s testator. Thereby the estate of the testatrix furnished the sole consideration for the mortgage back to secure the payment of the purchase price of the equity of the real estate involved. The plaintiff, however, in breach of his trust as one of the executors and trustees of the will whereunder the property in question was devised in trust by the testatrix, instead of requiring the consideration for its conveyance to the defendant’s testator to be paid or secured to the estate represented by him, bargained for his own private interest and profit at the expense of the trust estate. He could not do that legally. Hayes v. Hall, 188 Mass. 510, 511. Jose v. Lyman, 316 Mass. 271, 278-280, and cases cited. Boston Safe Deposit & Trust Co. v.
Order dismissing report reversed.
Judgment for the defendant.