Bradstreet v. Butterfield

• Decision Date: 10 September 1880
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Lydia S. Bradstreet & others v. Harriet P. Butterfield & others

129 Mass. 339

Lydia S. Bradstreet & others v. Harriet P. Butterfield & others

Supreme Court of Massachusetts

September 10, 1880

Argued March 24, 1879

Suffolk. Writ of Entry, dated March 18, 1875, brought to recover a parcel of land in that part of Boston formerly Charlestown. The case was submitted to the Superior Court, and, after judgment for the tenants, to this court on appeal, upon the following statement of facts:

The demandants are the heirs at law of James W. Stearns, late of Somerville, in the county of Middlesex, who died in 1863, and was a son of Sarah W. Stearns. The tenants are the heirs at law of Freeman Peacock, deceased.

Both parties claim title under the will of Sarah W. Stearns, late of Salem, in the county of Essex, which will was admitted to probate in that county on February 20, 1844, and by which she directed the residue of her estate to be divided among her children in nine equal shares, and made the following provisions:

"I give and bequeath one share thereof to my daughter Caroline in trust for my son James W. Stearns, and his heirs; the income thereof, and such part of the principal as shall be judged necessary by said trustee, to be applied for the support of said James W. and his family. This trust is to continue during the natural life of said James; and the estate herein bequeathed for his use, remaining at the time of his decease, if any, shall descend to his heirs at law or, if said trustee should otherwise determine, said trust may be terminated at any time, at the discretion of said trustee. Said trust to be held and executed by my daughter Caroline as aforesaid, her heirs and assigns, the directions of my said son James W. to be regarded in all things relating to the trust property and the disposition of the same, so far as said trustee shall consider said directions reasonable and judicious. It is my will that none of the trustees herein named and appointed shall be required to give bonds at the Probate Office for the faithful performance of their respective trusts. It is my will that my estate shall be divided among my children, as far as the same can be judiciously done, provided my children can agree among themselves as to the distribution and division thereof. The trustees herein named are fully authorized to convey, by a good and sufficient deed, any portion of the real estate by them respectively held in trust: provided they shall deem a sale thereof for the interest of those for whose benefit and use said trusts are respectively created."

Caroline accepted the trust, and acted as trustee until her death in 1851, unmarried, and leaving her brothers and sisters her heirs. Sarah W. Stearns's estate was duly divided, and the demanded premises were duly assigned and set off to Caroline, as part of the share so devised to her in trust.

No further proceedings were had in relation to the trust until at October term 1860 of the Supreme Judicial Court for the county of Middlesex, James W. Stearns filed and presented a petition for the appointment of a new trustee, which is copied in the margin. ^[*] The record of that case did not show that any notice was given, but, after reciting the substance of the petition, stated that, "upon hearing, it is ordered and decreed by the court here that George W. Emery, Esq., of Medford, in said county of Middlesex, be and hereby is appointed trustee under the will of Sarah W. Stearns aforesaid, in place of Caroline Stearns, late of Salem, deceased, with all the powers and duties conferred upon said trustee appointed by the will, with power to take, hold, manage, alien and convey said trust estate as fully as is given by the will to said Caroline."

Emery never gave any bond as trustee, and no persons interested in the trust estate certified their consent that such bond should not be required. He was not the heir or assign of Caroline. In January and February, 1861, Emery, as such trustee, in consideration of the sum of $ 1188 to him paid by Peacock, executed, acknowledged and delivered to Peacock deeds of the demanded premises; and Peacock immediately thereafter entered into possession of the premises, and made improvements thereon, and such possession has been continued by him and his heirs to the present time.

If the demandants were entitled to recover, judgment was to be rendered for them, with no damages for rents and profits, and the tenants were to have the right to remove the improvements; otherwise, judgment for the tenants.

Judgment affirmed.

W. S. Stearns & J. H. Butler, for the demandants.

C. Robinson, Jr., for the tenants.

OPINION

Gray, C. J.

The validity and effect of the decree made by this court in Middlesex at October term 1860 depend upon the provisions of the General Statutes. Gen. Sts. c. 181, § 2.

The provisions of those statutes conferring general jurisdiction in equity upon this court do not usually direct in what county suits in equity shall be brought, but leave that question to be determined by the nature of the subject matter, the analogies to be derived from actions at law, and the practice of courts of chancery. The principal if not the only cases in which there is express legislation upon this point are those of suits for the redemption of lands from levy on execution or from mortgage, of which the Superior Court has concurrent jurisdiction, and which must be brought in the county in which the land lies; and suits for the redemption of mortgages to the Commonwealth, which must be brought in this court in Suffolk. Gen. Sts. c. 103, § 29; c. 140, §§ 23, 48. Applications to this court sitting in equity for the appointment of trustees under a will have in practice been made either in the county in which the will has been admitted to probate, according to the rule governing the probate courts in like cases, or in a county in which land forming part of the trust estate is situated, according to the rule in real actions. Gen. Sts. c. 100, §§ 1, 7, 8, 9, 11, 14, 17, 22; c. 123, § 2. Although it is more usual and convenient that the appointment and the record thereof should be in the same county with the probate of the will, yet a decree made, without objection, in another county, in which part of the trust estate is situated, is not void, and cannot be collaterally impeached. Story Eq. Pl. §§ 486, 487. The fact that the petition...