B. M. C. Durfee Trust Co. v. Borden

• Decision Date: 25 November 1952
• Parties: B. M. C. DURFEE TRUST CO. v. BORDEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 129

109 N.E.2d 129

329 Mass. 461

B. M. C. DURFEE TRUST CO. v. BORDEN et al.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 27, 1952.

Decided Nov. 25, 1952.

Milton A. Westgate, Fall River, stated the case.

William S. Downey, New Bedford, guardian ad litem, pro se.

Richard K. Hawes, Fall River (Richard K. Hawes, Jr., Fall River, with him), for Philip P. Borden and another.

Ray C. Westgate, Fall River (Harold S. R. Buffinton, Fall River, with him), for Hildreth Crapo and others.

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

WILKINS, Justice.

The will of Philip D. Borden in its residuary clause created a trust for the benefit of his wife and daughter, and directed that upon their deaths without issue the trust property 'shall be paid over to the issue of my nephews, James Edgar Borden, Frank H. Borden, and Sydney F. Borden, living at the time of the death of the last survivor of my said wife and my said daughter or at the time of my death in case I shall survive both of them, share and share alike.' ¹ The testator died in 1936. His wife died in 1937, and his daughter in 1951, both without issue. At the daughter's death, which became the time for distribution, all three nephews were dead, two having predeceased the testator. There were then living Hildreth Crapo, Marjorie Brown, and Donald, D. Borden, children of Frank H. Borden; Philip P. Borden, child of James Edgar Borden; and Freeman S. Borden, child of Sydney F. Borden. In the next generation there were living Donald B. Brown, child of Marjorie Brown, and Joanne Borden and Bradford P. Borden, children of Philip P. Borden.

The question raised by this petition for instructions by the trustee is whether the distribution should be in five parts, as was decreed in the court below, to the five children of the nephews per capita; or in three parts to the children of the three nephews per stirpes; or, treating the children and grandchildren of the nephews on an equal footing, in eight parts per capita to the five children and the three grandchildren.

When the will was executed in 1922, the three nephews were living, and so were the five children of the nephews to whom distribution has been decreed, as well as a daughter of J. Edgar Borden, who predeceased the testator leaving no issue. The three grandchildren were born after the will was executed.

It seems clear that there should not be a division in three parts among the issue of the nephews per stirpes. There are no words indicating such an intent. Indeed, the testator's language shows the contrary. The nephews themselves were not made beneficiaries. The bequest was to their issue 'share and share alike.' The word 'living' modifies 'issue,' not 'nephews.' The issue living at the daughter's death would not share equally should the distribution be made one third to each set of children of the nephews. Language calling for a per stirpes division would not have been difficult to find. This case in this aspect is within the authority of Cammann v. Abbe, 258 Mass. 427, 429, 155 N.E. 438, and Gleason v. Hastings, 278 Mass. 409, 413, 180 N.E. 129. See Hall v. Hall, 140 Mass. 267, 271, 2 N.E. 700. The describing of the nephews by name does not lead to a different result. See Leslie v. Wilder, 228 Mass. 343, 345, 117 N.E. 342; Russell v. Welch, 237 Mass. 261, 263, 129 N.E. 422. The language of ...