Boston Safe Deposit & Trust Co. v. Stebbins

• Decision Date: 29 May 1941
• Citation: 309 Mass. 282,34 N.E.2d 616
• Parties: BOSTON SAFE DEPOSIT & TRUST CO. v. STEBBINS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 282

34 N.E.2d 616

BOSTON SAFE DEPOSIT & TRUST CO.

v.STEBBINS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 29, 1941.

Proceeding by Boston Safe Deposit & Trust Company, trustee, against Blanchard Stebbins and others, respecting construction of a will. On claim of appeal from an unsatisfactory decree of the probate court.

Decree modified in accordance with opinion and, as modified, affirmed.Appeal from Probate Court, Suffolk County; Poland, Judge.

Argued before FIELD, C. J., and DONAHUE, QUA, DOLAN, and COX, JJ.

R. W. Hardy, of Boston, stated the case.

R. J. Holmes, of Boston, for Stebbins.

E. E. Clark, of Boston, for guardian ad litem, pro se.

F. Adams and D. Holmes, both of Boston, for Mary S. Hukill.

QUA, Justice.

Herbert Stebbins, by the third clause of his will, dated June 26, 1933, left the residue of his estate to the petitioner as trustee to pay the income to the testator's widow for her life and upon her decease to his children and their issue until January 10, 1954, and thereupon to distribute the fund ‘to said issue by right of representation.’ Then follow these paragraphs:

‘(b) I hereby empower my trustee to pay over to either child of mine from time to time such part or parts of the principal of the trust fund at it shall deem necessary for the reasonable comfort, support and convenience, or for the assistance in business, of such child, such payments not to exceed in the aggregate Five Thousand Dollars to my daughter, and Ten Thousand Dollars to my son, and are not to be made to any grandchild.

‘(c) It is my will, however, that any indebtedness to the extent of Ten Thousand Dollars owed by my son to me at the time of my decease, whenever incurred, shall be paid without interest by deduction from the payments authorized under the foregoing section ‘b’ of this will.'

The testator left surviving him his widow, since deceased, and a son and daughter still living. The trustee holds as assets of the trust cash and securities to the amount of approximately $10,000, and four notes of the testator's son, to wit: an unsecured demand note for $9,200, dated July 20, 1922, an unsecured demand note for $4,000, dated May 22, 1930, an unsecured demand note for $4,000, dated June 3, 1931, and a note for $11,000, made in 1926, and secured by a second mortgage on real estate worth $2,000 above the amount of the first mortgage. We assume, as all parties seem to have done, that these notes were payable to the testator, and we further assume with the appellant that all of the unsecured notes have become outlawed. Before the will was made the testator had been the president and had managed the financial affairs of a business corporation in which his son had invested and lost ‘more than $19,000 his entire funds,’ while the testator had invested in the corporation only $1,000. The testator's son is in the building business, and the trustee believes that it would be ‘of assistance to his business' to have $10,000 of his indebtedness cancelled, if the trustee has the power to cancel it. The trustee believes that a payment of $5,000 should be made to the testator's daughter to be used for the education of her children, as she ‘cannot conveniently provide for the education of her children without such payment.’ The judge finds that the trustee's proposed exercise of its discretion is reasonable and that the payment of $5,000 to the daughter of the testator ‘for the education of her children’ will contribute substantially to her ‘reasonable comfort, support and convenience.’

1. The will does not require the trustee to cancel the secured note to the extent of $10,000, even if the unsecured notes are all wholly outlawed. Paragraph (b) empowers the trustee to make such payments from the principal ‘as it shall deem necessary’ for the reasonable comfort, support and convenience, or assistance in business, of a child of the testator. Paragraph (c) is a qualification of the power granted to the trustee by paragraph (b) in so far as relates to payments to the son. By paragraph (c) any payments made to the son under paragraph (b) are to be subject to a deduction of the amount of ‘any indebtedness' of the son to the testator ‘whenever incurred’ to the extent of $10,000. In view of the facts that the note for $9,200 had been overdue for many years and the two $4,000 notes for shorter periods before the will was made and that the testator allowed his will to stand unchanged as the later unsecured notes became outlawed, it would seem that by ‘any indebtedness * * * whenever incurred’ the testator meant to include any unpaid debt from his son to himself even though it might be outlawed. He could well speak of an outlawed debt as an indebtedness owed, if it remained unsatisfied. Cummings v. Bramhall, 120 Mass. 552, 561, 562;Sibley v....