Ascher v. Cohen

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation131 N.E.2d 198,333 Mass. 397
PartiesJoseph ASCHER v. Herman B. COHEN, Trustee, and others.
Decision Date03 January 1956

Page 198

131 N.E.2d 198
333 Mass. 397
Herman B. COHEN, Trustee, and others.
Supreme Judicial Court of Massachusetts, Middlesex.
Argued Nov. 8, 1955.
Decided Jan. 3, 1956.

Page 199

Harry J. Williams, Boston, for petitioner.

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

Monto Rosenthal, Boston, administrator, pro se.


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 [333 Mass. 398] 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...

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3 cases
  • Markham v. Fay, 95-1631
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 4, 1995
    ...also the settlor may be one of two or more beneficiaries. Sullivan v. Burkin, 390 Mass. 864, 460 N.E.2d 572, 575 (1984); Ascher v. Cohen, 333 Mass. 397, 131 N.E.2d 198, 199-200 (1956); Restatement (Second) of Trusts Sec. When a trustee is also a beneficiary, she holds the legal title to the......
  • Sullivan v. Burkin
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 23, 1984
    ...power to modify or revoke the trust, the right to receive income, and the right to invade principal during his life. Ascher v. Cohen, 333 Mass. 397, 400, 131 N.E.2d 198 (1956); Leahy v. Old Colony Trust Co., 326 Mass. 49, 51, 93 N.E.2d 238 (1950); Kerwin v. Donaghy, 317 Mass. 559, 567, 59 N......
  • State St. Bank and Trust Co. v. Reiser
    • United States
    • Appeals Court of Massachusetts
    • May 23, 1979
    ...457, 474-475, 53 N.E.2d 113 (1944); Kerwin v. Donaghy, 317 Mass. [7 Mass.App.Ct. 637] 559, 567, 59 N.E.2d 299 (1945); Ascher v. Cohen, 333 Mass. 397, 400, 131 N.E.2d 198 (1956). It might then be argued that a creditor ought to stand in no better position where, as here, the trust device was......

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