Barker v. Monks
| Decision Date | 03 March 1944 |
| Citation | 53 N.E.2d 696,315 Mass. 620 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | B. DEVEREUX BARKER & another, trustees, v. GEORGE GARDNER MONKS & others. |
January 8, 1942.
Present: FIELD, C.
J., QUA, DOLAN & RONAN, JJ.
Devise and Legacy Remainder, Time of vesting, Determination of class, Life estate. Trust, Termination, Distribution, Trustee's compensation and expenses. Words, "Shall make over and convey," "Then."
Under provisions of the will of one who died leaving unmarried children establishing a trust of all the testator's property to pay the income to the children and others "until the decease of all my children, I then order and direct that my trustee . . . shall make over and convey all my estate equally to my grandchildren," each grandchild at birth took a vested remainder interest subject only to later born grandchildren being admitted to such class of remaindermen and, upon the death of the survivor of the children, the capital should be equally divided among the then living grandchildren and the estates of those deceased.
A will, directing that the income of a trust fund should be divided among the testator's children during their lives, "and in case of the decease of any child . . . the share of such child shall go to his or her child or children (if any) otherwise shall be divided between my surviving children as aforesaid until the decease of all my children," gave to a grandchild of the testator who was the only child of a deceased child and who himself predeceased the survivor of the children an interest per autre vie in the share of the income formerly payable to his parent; and the estate of the grandchild was entitled to such share of the income from the time of the grandchild's death to the time of the death of the survivor of the children.
Upon a petition by a trustee under a will for instructions as to the final distribution of the trust fund at the termination of life interests, where it appeared that other pending litigation, to which the trustee was a party, involved a controversy as to claims against a share of the trust fund determined to belong to one of the respondents in the proceeding for instructions, this court ordered a decree permitting the trustee to withhold that share until the conclusion of the pending litigation or like litigation that might thereafter arise, and directing distribution of the other shares.
A trustee seeking instructions as to the final distribution of the trust fund, upon being instructed to divide it into certain shares and to distribute all of them except one which he was permitted to withhold pending the outcome of other litigation as to the persons entitled to receive that share, was also instructed that before making distribution he should deduct from the trust fund his proper charges for services and expenses incurred with respect to the administration of the fund as a whole, but that his charges and expenses incurred in connection with the litigation respecting the share withheld, to which he was a party, should be borne solely by that share.
PETITION, filed in the Probate Court for the county of Suffolk on October 21, 1940.
The case was heard by Dillon, J. B. D. Barker, stated the case.
R. E. Goodwin, (M.
F. Hall with him,) for Donald J.
Hurley, administrator, and others.
C. B. Rugg, (S.
Bradford & P. Shuebruk with him,) for Mary F. Bradford and others.
H. S. Avery, (W.
E. Doherty, Jr., with him,) for Antoinette G.
Monks.
M. A. Shattuck, (J.
F. Farr & S.
Macmillan with him,) for Archibald G. Monks.
C. M. Davenport, for Marion C.
Monks Chase.
C. L. Bremer, for Robert Hempel.
C. W. Oberdorfer, for Caroline T.
Monks, submitted a brief.
This is an appeal from a decree entered upon the petition of the trustees under the will of John P. Monks, late of Boston deceased, praying for instructions as to the distribution of the trust estate held by them under the will of the deceased.
John P. Monks, the testator, died on December 11, 1859. His will was executed on November 2, 1859, and a codicil thereto on November 26, 1859. In the past this court has had occasion to decide various matters relative to the administration of the trust estate created by him. See Monks v. Monks, 7 Allen, 401; Monks v. Bradford, 248 Mass. 296 . In neither of those cases, however, was the issue now before us presented for determination.
Under the will of the testator he provided in part and most pertinently as follows: The codicil to the will provided for the treatment of certain inter vivos transfers to three of the testator's children as advancements, his expressed wish being that all of his children should share equally in the division of the income from his estate. At the time of the execution of his will the testator had seven children, two of whom were by his first wife who had deceased. They were all unmarried and survived the testator, as did his second wife, his mother and his sister. Six of the children later married, and of these five had children. The last of the surviving children (Louisa D. Monks Hempel) died on December 9, 1939, the mother and sister of the deceased having died in the meantime; and the trust terminated. At the death of the last survivor of the children of the testator eight of his grandchildren were then living, eight other grandchildren having died in the meantime. Of the eight surviving grandchildren three had issue living, and of the deceased grandchildren two had issue living. The other six deceased grandchildren died without issue; of this group four died in infancy and two lived to majority.
In the court below the judge decreed that the principal of the trust estate, with accumulations and unpaid income therefrom, be divided and distributed in equal shares among the eight grandchildren of the testator who were living on December 9, 1939, the date of death of the last survivor of his children, or paid over to their legal representatives. The principal question to be decided is whether the corpus of the trust estate is to be divided and distributed equally into eight, sixteen or twelve parts. Those who contend that distribution should be made in twelve shares base their contention upon the fact that twelve grandchildren survived their parents, although only eight were alive at the death of the last life beneficiary.
The decision must rest upon the application of canons long since established for the construction of wills. They have been set forth in many prior decisions of this court. The basic rule is that the intent of the testator is to be gathered from the reading of the will as a whole in the light of the circumstances known to the testator and attendant upon its execution, and that, when his intent is so ascertained, it must be given effect unless some positive rule of law forbids. Minot v. Amory, 2 Cush. 377. Bamford v. Hathaway, 306 Mass. 160 . Boston Safe Deposit & Trust Co. v. Doolan, 307 Mass. 233 , 237. Boston Safe Deposit &
Trust Co. v. Park, 307 Mass. 255 , 259. This intention is to be sought in the will as a whole, and cannot rest on intention alone in the absence of words in the will as a whole in the light of the attendant circumstances. New England Trust Co. v. Berry, 310 Mass. 35 .
It is settled that the law favors the earliest vesting of estates, and that it will construe them as vested at the time of the death of the testator unless a contrary intention on the part of the testator is made to appear. Dingley v. Dingley, 5 Mass. 535 , 537. Bosworth v. Stockbridge, 189 Mass 266, 267-268. Minot v. Purrington, 190 Mass. 336 , 338. Blume v. Kimball, 222 Mass. 412 , 414. Richardson v. Warfield, 252 Mass. 518 , 521. Old Colony Trust Co. v. Brown, 287 Mass. 177 , 179. Second National Bank v. First National Bank, 289 Mass. 368 , 373-374. Cotter v. Cotter, 293 Mass. 500, 503. Boston Safe Deposit & Trust Co....
To continue reading
Request your trial