Ascher v. Cohen

• Decision Date: 03 January 1956
• Citation: 131 N.E.2d 198,333 Mass. 397
• Parties: Joseph ASCHER v. Herman B. COHEN, Trustee, and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 198

131 N.E.2d 198

333 Mass. 397

Joseph ASCHER v. Herman B. COHEN, Trustee, and others.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 8, 1955.

Decided Jan. 3, 1956.

Harry J. Williams, Boston, for petitioner.

John S. McKenney, Boston, for respondents Herman B. Cohen and others.

Monto Rosenthal, Boston, administrator, pro se.

Before QUA, C. J., and RONAN, WILKINS, WILLIAMS and WHITTEMORE, JJ.

RONAN, Justice.

This is a petition in equity brought under G.L. (Ter.Ed.) c. 230, § 5, as amended by St.1934, c. 116, by one Ascher to recover as assets of the estate of his deceased wife, Marion Goldenberg Ascher, two hundred shares of the capital stock of the Alberti Importing and Exporting Co., Inc., now held by the respondent Cohen as trustee in accordance with the provisions of a written trust created by the said Marion. The administrator with the will annexed had refused to bring proceedings in his name to recover the said shares. The petitioner has appealed from a final decree dismissing the petition, and the appeal is here with a report of the evidence and also a report of the material facts.

One Goldenberg, Marion's first husband, had established and conducted a wholesale grocery business for some time prior to and up to the time of his death in 1931. Marion thereafter with the help of one of her sons continued the business until 1935 when it was succeeded by the respondent corporation, Alberti Importing and Exporting Co., Inc., which she caused to be incorporated. She received two hundred shares of its stock and each of her four children one hundred shares. With the assistance of one of her sons and another in 1947 she continued to conduct the business. She married the petitioner in 1947. She became ill in 1951 and was confined in a hospital from May 19, 1951, to August 7, 1951, when she was discharged, although she then knew that it would be necessary for her to return which she did on October 24, 1951. She remained in the hospital until her death on January 19, 1952.

She consulted an attorney during the interval between her visits to the hospital in regard to the disposition of her property. She desired to put her property beyond the reach of her husband and did not wish that he or her children should have any present knowledge of what she was doing. Upon being advised that her real estate and, for some reason, the joint bank accounts could not be transferred into a trust without his knowledge, she decided to create a trust and to transfer the two hundred shares of the grocery stock into the trust. She selected Cohen, a friend who had done accounting for the grocery corporation, as cotrustee with herself. She reserved the right to revoke, alter, or amend the trust at any time or from time to time by a writing signed, sealed, and acknowledged by her. Under the provisions of the trust instrument, the trustees were to hold the trust property and any additional property that might be added to it and to pay to or apply for the benefit of the settlor during her lifetime the entire net income and so much of the principal as she might request. Upon her death the trust was to continue for the benefit of certain named children and was to terminate upon the death of the last survivor of these named children when distribution was to be made to the then living children of the last surviving child, and if there were none then distribution was to be made among those who would have been her heirs at law if she had then died domiciled in this Commonwealth. The indenture of trust was executed in duplicate. One copy was retained by her attorney who kept it in his possession in accordance with her request. Cohen held the other copy, together with the certificate for the two hundred shares of grocery...