125 Mass. 263 (Mass. 1878), Sparhawk v. Cloon

Citation:125 Mass. 263
Opinion Judge:Gray, C. J.
Party Name:William Sparhawk, administrator, v. William F. Cloon & another
Attorney:J. W. Perry & L. S. Tuckerman, for the defendants, and R. E. Harmon, (J. A. Gillis with him,) for the plaintiff; Tuckerman, for the defendants, and by Gillis & Harmon, for the plaintiff.
Case Date:August 31, 1878
Court:Supreme Judicial Court of Massachusetts
 
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Page 263

125 Mass. 263 (Mass. 1878)

William Sparhawk, administrator,

v.

William F. Cloon & another

Supreme Court of Massachusetts

August 31, 1878

         Argued November 10, 1876

Page 264

[Syllabus Material]

Page 265

         Essex. Bill in equity against William F. Cloon and Francis Parton, to reach and apply a trust fund in the hands of Cloon in payment of a debt due from Parton to the plaintiff.

         The bill alleged that the will of Mary R. Parton, dated February 5, 1863, contained the following provisions:

         "Item 1. I give, bequeath and devise all the property I may own at the time of my death, whether real, personal or mixed, and all contingent right vested in me to any property, or easement or interest, to and unto William F. Cloon, of Marblehead, Massachusetts, to be held by him in trust for the sole use and support of Francis Parton, my husband, of Lynn aforesaid, the said Francis hereunto giving his assent to this bequest. And I hereby require said Cloon, as trustee, to advise with my said husband, and to appoint, according with his advice, one or more, to succeed him as my and his trustee, successors to hold my said property, in trust as aforesaid, should he desire to decline said trust, or be in apprehension of his own death And said trustee is further empowered to sell or exchange any of my aforesaid estate, and reinvest the proceeds thereof whenever he and my husband may deem profitable. And said trustee is empowered to relieve himself from trouble and care by appointing my husband his agent or attorney. A receipt or a written assent, signed by my husband, shall free said trustee from legal liability for any money paid by him or for any act he may perform as my trustee. And such a receipt or written assent, signed by my husband, must be obtained in every such instance of payment, or exchange and sale, and reinvestment of property.

         "Item 2. I hereby make it the duty of said trustee, and all he may appoint to succeed him, to convey by deed any part or all of my said estate to such associations, person or persons as my husband may designate and propose hereafter by certified written authority, leaving with my husband to fix the time of any such conveyance.

         "Item 3. I hereby nominate and appoint Francis Parton, my husband, to be sole executor of this my last will and testament. And it is my desire and will, that he be not required to give a bond for the faithful performance of his duties as my executor."

         The bill further alleged that the will was duly admitted to probate; that Cloon accepted the trust, and held under it certain land and personal property, from which he received the rents, profits and income; that on June 20, 1876, Francis Parton executed an assignment under seal, which, after reciting the provisions of the will in his favor, and that he had been arrested on an execution issued on a judgment obtained by the plaintiff for debt, and that the...

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