Billings v. Fowler

Decision Date25 February 1972
Citation361 Mass. 230,279 N.E.2d 906
PartiesKatharine Fowler BILLINGS v. William Plumer FOWLER et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

H. Burton Powers, Boston (Harley M. Smith, Boston, with him), for Katharine F. Billings.

William P. Fowler, pro se.

Paul B. Sargent, Boston, guardian ad litem, pro se.

John E. Rogerson, Boston (Neil R. Markson, Boston, with him), for Richard Fowler and others.

Charles Y. Wadsworth and Timothy Dacey, III, Boston, for Charles Y. Wadsworth, guardian ad litem, submitted a brief.

Before TAURO, C.J., and CUTTER, QUIRICO, BRAUCHER and HENNESSEY, JJ.

CUTTER, Justice.

Mrs. Billings, by equity petition in the Probate Court, seeks declaratory relief concerning possible interests of her adopted daughter, Betty Jean Neilsen, in the residuary trust under the will of Mrs. Billings's mother, Susan Farnham Fowler (the testatrix), late of North Andover, who died February 16, 1928. Numerous possible beneficiaries under the will are named as parties. A separate guardian ad litem has been appointed for (a) a group of interested minors and other persons not now ascertained or in being who may become interested in the trust estate, and (b) for persons not ascertained or not in being who may become interested by reason of later adoption. A judge of the Probate Court, without decision, has reported the case on the pleadings and a statement of agreed facts 1 for the determination of this court.

The testatrix at her death in 1928 left a will dated February 8, 1923, and a codicil dated May 13, 1927. She was survived by three children, Mrs. Billings, Mr. William Plumer Fowler, and Philip Fowler. Mrs. Billings has two children, one (Mrs. Neilsen) adopted in 1941 and one son (George) born in lawful wedlock in 1939 to her and her husband. Neither George nor Mrs. Neilsen has issue. Although the record does not clearly show this to be the case, we assume to be true representations in various briefs that Mrs. Billing's brother, Mr. William Fowler, has three children and six grandchildren, all apparently born prior to September 1, 1969. Her brother, Philip, has no children.

By art. 6 of her will, the testatrix gave the residue of her property to trustees to hold upon trusts as follows: 'C. To pay the . . . net income . . . as follows: (1) To my children, and to the issue of any deceased child of mine by right of representation . . . during the natural lives of the survivors and survivor of my children and twenty-one years . . . thereafter. (2) If my daughter Katharine shall die without leaving issue living, or if either of my sons shall die without leaving a widow or issue living, to pay over the share of my deceased daughter or the share of such deceased son in . . . net income to the survivors and survivor of my children; and to the issue of any deceased child of mine, by right of representation . . . during the . . . life of the survivor of my children and twenty-one years next thereafter. . . . (Then follows subpar. (3) making provision for the widow of a deceased son, in detail which need not be reproduced here.) (4) If any of my children shall die leaving issue living and all of said issue shall die before the death of the survivor of my children or before the end of twenty-one years next (there)after . . . to pay over the share of said deceased issue in said entire net income to the survivors and survivor of my children and to the issue of any deceased child by right of representation . . . during the life of the survivor of my children and twenty-one years next thereafter.' 2

The trustees are then directed, 'D. At the end of twenty-one years next after the death of the survivor of my children, to . . . (distribute the trust estate) to the children of my children then living, and to the issue of any deceased child of any of my children by right of representation . . . it being my intention that my grandchildren shall share equally in the (t)rust (e)state herein created, but that the issue of any deceased grandchild of mine shall take by right of representation: (subject to a provision, which need not be set out, for any then living widow of the testatrix's sons) . . .. If, at any time prior to . . . twenty-one years next after the death of the last survivor of my children, all issue of my children and all issue of any child of my children shall have died, and the widow or widows of my son or sons shall also have died or remarried, then . . . the Trustee . . . shall convey and distribute the entire principal and undistributed income of this Trust Estate . . . to my said sisters or to the issue of my said sisters, if deceased, by right of representation . . ..'

1. At the outset arises the procedural question whether declaratory relief is permissible under G.L. c. 231A (inserted by St.1945, c. 582, § 1). The petition alleges that controversies have arisen with respect to interests created under a will executed in 1923, which was admitted to probate in 1928 at the testatrix's death. The extended printed briefs filed in this court attest to the fact that there is an intense dispute among the parties concerning the proper interpretation of the testatrix's 1923 will, in the light of various later statutory provisions. This controversy may have an important bearing upon prudent present action by one or more of the parties. For example, Mrs. Billings asserts that she 'has immediate estate planning problems dependent upon whether . . . her adopted daughter is a beneficiary under' the testatrix's will.

We are of opinion that, under c. 231A, §§ 1, 2, instructions concerning the meaning of a will may be obtained even though no direct, immediate interest of a present life beneficiary will be affected. Chapter 231A (see Twentieth Report of the Judicial Council (December, 1944), Pub.Doc. No. 144, pp. 15--21) was intended to expand, at least in the discretion of the court, prior provisions for the interpretation of written instruments. Mrs. Billings's estate planning interest is sufficient to permit declaratory relief, particularly in view of c. 231A, § 9, requiring that the chapter be 'liberally construed,' so as 'to remove, and to afford relief from, uncertainty . . . with respect to rights.' We have exercised the authority to grant such relief. Copp v. Worcester County Nat. Bank, 347 Mass. 548, 551--552, 199 N.E.2d 200. See Old Colony Trust Co. v. Silliman, 352 Mass. 6, 9--11, 223 N.E.2d 504; Old Colony Trust Co. v. Board of Governors of Belleville Gen. Hosp., 355 Mass. 776, 779--781, 247 N.E.2d 583. See also Nissenberg v. Felleman, 339 Mass. 717, 724--726, 162 N.E.2d 304; Commissioner of Administration v. Kelley, 350 Mass. 501, 504--506, 215 N.E.2d 653; Massachusetts Ass'n of Tobacco Distribs. v. State Tax Commn., 354 Mass. 85, 87--89, 235 N.E.2d 557. The tendency of this court has been to apply § 9 broadly. Cases (see, e.g. Boston Safe Deposit & Trust Co. v. Northey, 332 Mass. 110, 114, 123 N.E.2d 365) arising upon traditional petitions for instructions, rather than under c. 231A, are not to be regarded as necessarily precluding declaratory relief, although substantial discretion is given by c. 231A to deny relief in appropriate cases.

2. The present controversies arise by reason of St.1969, c. 27, the pertinent provisions of which are quoted in the margin. 3 That statute, approved February 25, 1969, was (by § 3) made effective on September 1, 1969. The question for decision, of course, is whether Mrs. Billings's adopted daughter, Mrs. Neilsen, is one of the 'issue' or a 'grandchild' of the testatrix, or a 'child' of Mrs. Billings within the meaning of such terms (and similar terms) used in the testatrix's 1923 will.

The decision of this case requires some discussion of earlier statutes leading up to St.1969, c. 27 (fn. 3). For convenience these are set out in chronological order in Appendix A at the end of this opinion. It will be observed that there have been significant variations of substance, for more than 120 years, in the policy of the Commonwealth with respect to the rights of inheritance of adopted children and to the interpretation of wills under which adopted children may take an interest. Many of these statutes have recently been discussed in Boston Safe Deposit & Trust Co. v. Fleming, Mass., 279 N.E.2d 902. This makes possible in this opinion a less comprehensive review of the statutory changes than might otherwise be necessary.

3. Three examples of situations which arise under the testatrix's 1923 will illustrate the present controversy. (1) Under art. 6 C (2), if Mrs. Billings should 'die without leaving issue living' her share in the income of the residuary trust would go 'to the survivors and survivor of my children; and to the issue of any deceased child cf mine, by right of representation.' If Mrs. Billings's son (born in lawful wedlock) should predecease her, would Mrs. Neilsen, the adopted daughter, be treated as 'issue' of Mrs. Billings? (2) A similar problem arises under art. 6 C (4), quoted earlier. (3) At the expiration of the trust under art. 6 D, the trust corpus is to go 'to the children of my children then living, and to the issue of any deceased child of any of my children by right of representation . . . share and share alike, it being my intention that my grandchildren shall share equally in the' trust corpus, 'but that the issue of any deceased grandchild of mine shall take by right of representation.' Is Mrs. Neilsen, if then alive, to be included as a grandchild of the testatrix, taking per capita under art. 6 D? If she is so to be included, the size of the share of each other then living grandchild, of course, will be reduced.

4. Prior to the effective date of St.1958, c. 121 (see Appendix A, par. 5), the prevailing rule was found in G.L. c. 210, § 8, as it had stood, essentially unchanged since 1876, and had been uniformly applied by this court. See Boston Safe Deposit & Trust Co. v. Fleming,...

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