Allen v. Stewart

• Decision Date: 27 February 1913
• Parties: ALLEN v. STEWART et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 109

100 N.E. 1092

ALLEN v. STEWART et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1913

COUNSEL

Webster Allen & Fish, of Boston, for appellant.

Charles J. Martell, of Boston for appellees.

OPINION

BRALEY J.

By the fourth clause of his will James J. Costello provided: That 'all the rest and residue of the property and estate of every name and nature, and wheresoever situated, that shall belong to me at the time of my decease, I give, bequeath and devise to my said wife, Catherine H. Costello, and my son Joseph A. Costello,--to have and to hold the same to them and their heirs, executors, administrators and assigns: But in trust nevertheless to hold and manage the same for the period of seven (7) years from the time of my decease and after paying all taxes, cost of insurance, repairs and all other charges and said annuities to my brother and sister pay the net income thereof, during said period of seven years, in quarterly yearly payments as follows, viz., one third (1/3) thereof to my wife and any child I may have by her and the remaining two-thirds (2/3) in equal shares to my three children, Frances A. Callahan, James F. Costello and Joseph A. Costello. And in case the net income of said trust property shall in any year from the time of my decease during the term or life of said trust, not amount to the sum of ten thousand dollars ($10,000) I direct my said trustees to sell and dispose of such of the trust property, other than the property on the corner of Cambridge and Charles streets and the wharf property on Revere street, near Charles street, in said Boston, and apply the proceeds of such sale or sales, to an amount which, with the net income of said trust property shall amount to the sum of ten thousand dollars and pay said annuities and the balance to my wife and children at the time and in the proportions aforesaid.

'And on the expiration of said period of seven years, I direct my said trustees, or their successors in said trust, to pay, transfer and convey said trust property, or so much thereof as shall then be remaining, as follows: One-third (1/3) thereof to my wife and such children as I may have by her, and the other two-thirds (2/3) in equal shares to my said three children, Frances A. Callahan, James F. Costello, and Joseph A. Costello--and thereupon said trust shall cease and be ended. In case either of my said children should die during the continuance of said trust leaving issue, surviving, I direct that the income of said trust property otherwise payable to such child, shall be paid to such issue,--and on the termination of said trust, the principal of said trust property otherwise payable or belonging to such child, if living, shall be paid, transferred and conveyed to such issue.'

Manifestly James F. Costello, who survived the testator, took an equitable life estate for the term of seven years in one-third of the entire net income, which to the extent of $10,000 payable each year, was, exclusive of the excepted parcels, charged upon the land. Taft v. Morse, 4 Metc. 523, 527; Sherman v. Sherman, 4 Allen, 392; Henry v. Barrett, 6 Allen, 500; Thayer v Finnegan, 134 Mass. 62, 64, 65, 45 Am. Rep. 285; Amherst College v. Smith, 134 Mass. 543. And it was the duty of the trustees, if necessary, to have sold enough annually to produce the required amount, and to have distributed it in accordance with the provisions of the will. The defendants admit, that although the net income proved insufficient no portion of the land was ever converted, and at his decease before the period expired, there was due to James under the trust even if he left issue, a sum equal at least to the amount stated in the eighth paragraph of the bill. By conveyance duly recorded, and conceded to be valid, James mortgaged all his right and title to the plaintiff. The ...