Boston Safe Deposit & Trust Co. v. Northey

• Decision Date: 29 December 1954
• Citation: 123 N.E.2d 365,332 Mass. 110
• Parties: , 51 A.L.R.2d 200 BOSTON SAFE DEPOSIT & TRUST CO., Tr., v. Jane P. NORTHEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 365

123 N.E.2d 365

332 Mass. 110, 51 A.L.R.2d 200

BOSTON SAFE DEPOSIT & TRUST CO., Tr., v. Jane P. NORTHEY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 3, 1954.

Decided Dec. 29, 1954.

Paul B. Sargent, Boston, for respondents Jane P. Northey and Richard P. Northey.

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

SPALDING, Justice.

Edward A. Northey, hereinafter called the testator, died on November 17, 1942. By his will, which was allowed in 1942, the testator left all the residue of his real and personal property to the Boston Safe Deposit and Trust Company, hereinafter called the trustee, in trust as follows:

'(a) To pay to Caroline T. Peabody, now living at 270 Bay State Road, Boston, Massachusetts, the income therefrom up to but not exceeding the sum of Twenty-five Hundred (2500) Dollars yearly by monthly installments during her life.

'(b) To pay the balance of said income above Twenty-five Hundred (2500) Dollars a year, if any, during the life of said Caroline T. Peabody in equal shares to my three brothers the said Herbert W. Northey, Henry B. Northey of Topsfield and Salem, Massachusetts and William E. Northey of Salem, Massachusetts, and in case of the death of any of said brothers his share of said income to be paid to his heirs.

'(c) Upon the death of said Caroline T. Peabody said Trust shall terminate and the Trust Fund shall be divided equally between my three brothers and their heirs, the heirs of any to take by right of representation.'

Two of the brothers, Herbert and William, predeceased the testator, Henry survived the testator, as did Caroline T. Peabody. The Probate Court in 1943, in answer to a petition for instructions brought by the trustee, decreed that five twelfths of the balance of the income above $2,500 a year during the life of Caroline T. Peabody was to be paid to Henry B. Northey, and that the remainder of the balance was to be paid in certain specified proportions to the heirs of Herbert and William. The court also at that time decreed that the principal at the termination fo the trust was to go to the same persons and in the same proportions.

On October 15, 1952, Henry died testate. Caroline T. Peabody is still alive. The trustee in this petition seeks instructions as 'to whom and in what portions * * * [Henry's five-twelfths share] of the income from the trust fund over and above * * * [the $2,500 payable to Caroline T. Peabody] should now be paid.' The trustee also sought instructions as to the disposition of the shares of income paid to the heirs of Herbert and William should such heirs die during the lifetime of Caroline T. Peabody, as to the distribution of the five-twelfths share of the principal which under the 1943 decree was to go to Henry, and as to the distribution of the shares of principal given by that decree to the heirs of William and Herbert should such heirs die before the time of distribution. A guardian ad litem was appointed to represent persons unborn or unascertained.

The judge decreed that Henry's right to the income during the lifetime of Caroline T. Peabody was a vested interest which passed under Henry's will and was to be paid to his trustees until Caroline's death. The judge declined instructions as to the other matters. The heirs of Henry, Jane P. Northey and Richard P. Northey, appealed.

The general rule is that where the payment of income to a person is not limited in terms to the life of a beneficiary but is limited to some other lawful period of time, and before the expiration of that period the beneficiary dies, his personal representative is entitled to the income for the remainder of the period. Harrison v Marden, 298 Mass. 148, 150, 10 N.E.2d 109, 112 A.L.R. 577; Hussey v. Hussey, 323 Mass. 533, 535, 83 N.E.2d 159; Annotations, 112 A.L.R. 581 et seq.

Henry's heirs argue in substance that the foregoing rule is not applicable here and that they are entitled to his share of the income for the remainder of the period here limited, that is until the death of Caroline T. Peabody. The testator's will provides for payments of income to the named brothers during the life of Caroline 'and in case of the death of any of said brothers his share of said income to be paid to his heirs'. (Emphasis supplied.)

'In bequests of personal property, the leaning in favor of vested interests, and the absurdity of speaking of the one event which is sure to occur to all living as uncertain and contingent, have led the courts to interpret the words 'in case of the decease' of the first legatee, when followed by a second legacy of the same property, not to mean death at any time in the future, but death within a certain period, and when no other period is indicated by the will, within the lifetime of the testator; and thus to substitute the second legacy in place of the first, and make it vest immediately upon the testator's death.' Briggs v. Shaw, 9 Allen 516, 517, per Gray, J.; Meins v. Pease, 208 Mass. 478, 481, 94 N.E. 845; Jones v. Webb, 5 Del.Ch. 132; Burge v. Walling, 18 Stew. 10; Fowler v. Ingersoll, 127...