Agricultural Nat. Bank of Pittsfield v. Schwartz

• Decision Date: 08 March 1950
• Citation: 325 Mass. 443,32 A.L.R.2d 289,91 N.E.2d 195
• Parties: , 32 A.L.R.2d 289 AGRICULTURAL NAT. BANK OF PITTSFIELD et al. v. SCHWARTZ et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 195

91 N.E.2d 195

325 Mass. 443, 32 A.L.R.2d 289

AGRICULTURAL NAT. BANK OF PITTSFIELD et al. v. SCHWARTZ et al.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Sept. 20, 1949.

Decided March 8, 1950.

J. M. Rosenthal, Pittsfield, for petitioners.

F. M. Myers, Pittsfield, for B. R. Harrow and others, respondents-appellants.

H. Serper, Brooklyn, N. Y., J. A. Bowes, North Adams, for Minnie Schwartz, respondents-appellant.

Wolf, Popper, Ross & Wolf, New York City, for Anna L. Goldstein and others, respondents.

L. S. Cain, Pittsfield, A. W. Chesney, R. A. Lewis and R. T. Capeless, Pittsfield, for Bertha Culker and others, respondents.

N. Harawitz, New York City, pro se.

I. J. J. and C. E. Donna, Pittsfield, for M. H. Wilson, respondent.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and COUNIHAN, JJ.

RONAN, Justice.

This is a petition filed by the trustees under the will of Harry Blank seeking instructions respecting to whom and in what proportions the principal and undistributed income of a trust created by his will should be paid.

The testator, whose wife, Eva Blank, predeceased him, died November 7, 1938, leaving no issue. He had four sisters and two brothers and his wife had five sisters and five brothers, and all of these sixteen except Minnie Schwartz, a sister of the testator's wife, died prior to the date fixed for the termination of the trust. By the fifth clause of the will, he left in trust a certain parcel of real estate, formerly owned by his wife, and four other parcels. The pertinent provisions are contained in subparagraphs 2 and 4 which, in so far as material, read as follows: '2. To pay over said income for the benefit of any of the next kin of my late wife or of myself who may from time to time be in need of financial assistance and the amount of any such payment and the beneficiary thereof to be determined by said trustees in their sole discretion. It is my hope that my said trustees in distributing said income will bear in mind the needs of any relatives of myself or my said wife, of whatever degree, who may be residing outside of the United States of America.' '4. Said trust shall continue for ten years after the date of my death and at the expiration of said period I direct my said trustees to convert the principal fund into cash and to divide the net proceeds resulting therefrom equally among those persons who would have been the next of kin of myself and my late wife had we died as of the date fixed for such distribution. * * *' This subparagraph further authorized the trustees no extend this ten year period for not more than three years if more cash could then be realized from a sale of the trust property. The Probate Court instructed the trustees that the words 'next of kin' in subparagraph 4 included all those persons to whom the property would descend from either the testator or his wife under the provisions of G. L. (Ter.Ed). c. 190, § 3(5); that the principal and undistributed income should be divided into sixteen equal shares; and that one of those shares should be paid to Minnie Schwartz, one share to the children of each of the deceased brothers and sisters of Eva Blank, and one share to the children of each of the deceased brothers and sisters of the testator. Minnie Schwartz and the residuary legatees appealed from this decree.

The persons who are to share in the principal of the trust are 'the next of kin of myself and my late wife had we died as of the date fixed in such distribution.' The persons who were to take could not be ascertained until the time had arrived for ending the trust and distributing the property, and only those then alive could share therein. Tyler v. City Bank Farmers Trust Co., 314 Mass. 528, 532, 50 N.E.2d 778; Worcester County Trust Co. v. Marble, 316 Mass. 294, 299, 55 N.E.2d 446; McKay v. Audubon Society, Inc., 318 Mass. 482, 487, 62 N.E.2d 117. The question is who were the next of kin of the testator and his wife at that time. On one side, it is argued that the common understanding and popular meaning of those words, in the absence of anything to the contrary appearing in the will, are those persons who take under the statute of distributions. The reasons for this construction have been frequently set forth in some of the decisions of the many jurisdictions which have held that a testator by the use of such terms intends that his estate shall pass to those who will take as though he died intestate. Kimbrough v. Dickinson, 247 Ala. 324, 24 So.2d 424; Close v. Benham, 97 Conn. 102, 115 A. 626, 20 A.L.R. 351; Lowrimore v. First Savings & Trust Co., 102 Fla. 740, 751, 140 So. 887, 891; Wilcox v. Bierd, 330 Ill. 571, 162 N.E. 170; Coss v. Goembel, 210 Minn. 32, 297 N.W. 114; St Louis Union Trust Co. v. Kaltenbach, 353 Mo. 1114, 186 S.W.2d 578; Carter v. Thayer-Martin, 122 N. J. Eq. 262, 193 A. 704; Matter of Burk's Will, 298 N.Y. 450, 84 N.E.2d 631; Godfrey v. Epple, 100 Ohio St. 447, 126 N.E. 886, 11 A.L.R. 317; Restatement: Property, § 307.

It is, however, settled in this Commonwealth, adopting the early English view, that the original and primary meaning of next of kin is the nearest blood relatives of the designated person where there is nothing in the will tending to show these words were used in a different sense. It was said in Swasey v. Jaques, 144 Mass. 135, 138, 16 N.E. 758, 762, 59 Am.Rep. 65: 'It is certainly difficult to distinguish between the expressions 'next of kin.' 'nearest of kin,' 'nearest kindred,' and 'nearest blood relations,' and primarily the words indicate the nearest degree of consanguinity, and they are, perhaps, more frequently used in this sense than in any other. What little recent authority there is, beyond that of the English courts, supports the English view, and, on the whole, we are inclined to adopt it. * * * There is nothing in the will which controls or modifies the meaning of the words 'next of kin." This interpretation of these words has been uniformly followed in decisions written by eminent judges who were fully aware of this conflict of authority and preferred to follow the rule of the Swasey case and that earlier laid down in Haraden v. Larrabee, 113 Mass. 430; Fargo v. Miller, 150 Mass. 225, 22 N.E. 1003, 5 L.R.A. 690; Keniston v. Mayhew, 169 Mass. 166, 47 N.E. 612; Leonard v. Haworth, 171 Mass. 496, 51 N.E. 7; Kelley's Case, 222 Mass. 538, 111 N.E. 395; Bailey v. Smith, 222 Mass. 600, 602, 111 N.E. 684; Makller v. Independent Workmen's Circle of America, Inc., 255 Mass. 252, 151 N.E. 69. The principle has become too firmly embedded in our jurisprudence to be changed. Mabardy v. McHugh, 202 Mass. 148, 151-152, 88 N.E. 894, 23 L.R.A., N.S., 487, 132 Am.St.Rep. 484, 16 Ann.Cas. 500; Vinton v. Pratt, 228 Mass. 468, 470, 117 N.E. 919, L.R.A.1918D, 343; Salter v. Beal, 321 Mass. 105, 107-108, 71 N.E.2d 872; Newton-Waltham Bank & Trust Co. v. Miller, 325 Mass. 330, 90 N.E.2d 553.

The testator made substantial gifts to his own kindred and to those of his wife. Some of the bequests were to be paid to the children of a legatee or to the estate of the latter if he predeceased the testator, and another bequest was made to the children of a deceased brother as a class. He knew how to describe accurately the ultimate beneficiaries in a situation where some of his brothers and sisters and those of his wife had already died and where some of those surviving him were likely to die before the termination of the trust. The general plan of the will was in the main to favor the blood relatives of himself and those of his wife. The words next of kin appear but twice in the will, once with reference to the distribution of the trust income and again in providing for the distribution of the trust property. The Probate Court in 1940 entered a decree to the effect that the next of kin in subparagraph 2 of the fifth clause providing for the payment of income were 'the nearest blood relatives of the testator and his deceased wife Eva Blank,' and that the trustees had power to distribute the income to any relatives of the testator or his wife of whatever degree who might be residing outside of this county if they were in need of assistance. There was no appeal from this decree. We need not, however, decide whether it binds the parties in this proceeding as to the meaning to be given to the words next of kin (see 63 Harv.L.Rev. 504) for it is plain in subparagraph 2 that the testator desired the income to go to such of the next of kin of himself and of his wife as the trustees deemed in need of assistance. He knew that if he stopped there only the nearest blood relatives could share in the income. He did not desire to have the class so limited, and so he extended the class by directing his trustees to aid any of the blood relatives of either himself or his wife, 'of whatever degree,' who may be residing outside of the United States, thus making a clear distinction between next of kin and those standing in a more remote degree of consanguinity to himself or his wife. Consequently, whether the decree is binding upon the parties is immaterial, for we would construe the words next of kin as did the judge in the decree of 1940 even if no such decree had been entered.

We have already indicated that the words next of kin as they appear in the subparagraph providing for the payment of income include only those who stood in the nearest degree of consanguinity to the testator or to his wife. The ordinary canon of interpretation, that the same words or phrases appearing in other parts of a will are presumed to have been employed with the...