Bailey v. Meade

• Citation: 144 N.E. 110,250 Mass. 46
• Parties: BAILEY et al. v. MEADE.
• Decision Date: 26 September 1924
• Court: United States State Supreme Judicial Court of Massachusetts

250 Mass. 46

144 N.E. 110

BAILEY et al.

v.MEADE.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 26, 1924.

Appeal from Probate Court, Suffolk County; W. M. Prest, Judge.

Petition for instructions by Herbert B. Bailey and others, as trustees under the will of Emeline S. Jenkins, against Charles J. Meade and another. From an adverse decree, defendant Meade appeals. Decree reversed, and petition dismissed.

F. T. Leahy, of Boston, for petitioner.

W. B. Grant and J. B. Crawford, both of Boston, for respondent Smith.

F. W. Bacon, of Boston, for respondent Meade.

CROSBY, J.

This is a petition for instructions by the trustees under the will of Emeline S. Jenkins whether a certain fund in their hands (which arose from an award for damages against a tenant for failure to make repairs required under a written lease) should be paid to the respondent Willard Pleis Smith, or to the respondent Charles J. Meade. Specifically stated the question is whether $1,412.14, less administration charges, should be paid to the respondent Meade, who is executor, legatee and devisee under the will of Helen I. Meade, a beneficiary under the will of Emeline S. Jenkins, or to Smith, another beneficiary under the same will.

The pertinent facts involved are as follows: Emeline S. Jenkins in 1896 was the owner in fee as tenant in common of an undivided one-half interest in certain real estate in Boston. She and her cotenants made a lease of the estate for 20 years to one Ginn. This lease, which expired April 1, 1917, contained covenants by the lessee to keep the premises in good repair and to deliver them up in the same condition at the end of the term, and they purported to bind and inure to the benefit respectively of the legal representatives and assigns of the lessors and lessees. The covenant was broken by Ginn and the successors in title, and they have paid to the petitioners under an award as a result of such breach $11,408.15 damages, $3,232.31 interest, and $64.75 costs. After deducting legal expenses, and the share of the cotenants, there remain $5,648.56 to be distributed among those entitled under the will of Mrs. Jenkins, who died May 21, 1905. Mrs. Jenkins was a widow. By her will and codicils she devised this real estate, with other property, to the petitioners as trustees, upon trusts which have twice been before this court for construction. Bailey v. Smith, 214 Mass. 114, 101 N. E. 62;Bailey v. Smith, 222 Mass. 600, 111 N. E. 684. Certain provisions made for her brothers, William John Smith and Franklin Smith, and their widows, have terminated by reason of the death of all the beneficiaries of this description. Upon the death of William on January 10, 1910, one-half the interest of the Jenkins estate in this real estate vested in remainder, subject to the trust, in Willard Pleis Smith and Helen I. Meade. Bailey v. Smith, 222 Mass. 600, 111 N. E. 684. Upon the death of the widow of William on February 17, 1915, these remainders came into absolute possession free of the trust without the necessity of any conveyance by the trustees. Bailey v. Smith, 222 Mass. at page 604, 111 N. E. 684.

Helen I. Meade having died June 23, 1910, without making any specific devise of real estate, the result was to vest absolutely in Willard Pleis Smith (her brother) an undivided one-eighth of the whole property, and to vest an equal portion therein in Charles J. Meade, the surviving husband and residuary devisee and legatee of Helen, subject to the powers and authority which he had in his capacity of executor of her will. Apparently with the consent of all persons interested, the petitioners, however, continued to manage the property; they received income, paid expenses and distributed the balance of the income to the parties interested, proportionately to their interests. It also appears that the trustees with the consent of the interested parties collected the fund now in question. On July 11, 1918 (erroneously stated in the petition August 14, 1918), Meade, as executor of the will of Helen, by license of the probate court sold and conveyed to Willard Pleis Smith all the interest which she had in the property at the time of her death. The sum in controversy was collected by the trustees subsequent to this conveyance.

The probate court has instructed the petitioners that the one-eighth of the total amount received on account of the breach of the covenant in the lease to Ginn (which corresponds with the one-eighth interest conveyed by Meade) is to be paid to his grantee, Smith, and a decree has been entered accordingly, from which the respondent Meade has appealed.

[1][2] The transfer of the reversion by the will of Mrs. Jenkins gave to Helen I. Meade and Willard Pleis Smith the benefits of the lessee's covenants including the covenant to repair and to return the premises in good condition. Williams v....