Boston Safe Deposit & Trust Co. v. Pratt

• Decision Date: 05 June 1934
• Citation: 287 Mass. 23,191 N.E. 31
• Parties: BOSTON SAFE DEPOSIT & TRUST CO. v. PRATT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 23

191 N.E. 31

BOSTON SAFE DEPOSIT & TRUST CO.

v.PRATT et al.

Supreme Judicial Court of Massachusetts, Plymouth.

June 5, 1934.

Appeal from Probate Court, Plymouth County; Loyed E. Chamberlain, Judge.

Petition by the Boston Safe Deposit & Trust Company for instructions as to distribution of the estate of Susanna K. Tobey, wherein Lowell T. Pratt and others were parties. From the decree, respondents appeal.

Affirmed.

C. M. Rogerson, of Boston, stated the case.

W. D. Cotton, of Boston, for Ellen H. Taylor.

S. H. Lyon, of Boston, for Atlantic Nat. Bank of Boston, executor.

L. W. Jenney, of New Bedford, for Town of Wareham.

J. D. Dow, Jr., of Boston, for trustees of donations to the Protestant Episcopal Church and another.

LUMMUS, Justice.

Susanna K. Tobey died August 7, 1911, at the age of one hundred years (Boston Safe Deposit & Trust Co. v. Attorney General, 234 Mass. 261, 266, 125 N. E. 392), leaving a will, dated December 16, 1887, which was duly allowed. Of her three children, George O. Tobey, Senior, and Gerard Tobey, the latter of whom was mentioned in the will as living, died before the testatrix; and Horace Tobey survived the testatrix but died in 1918 without issue. Gerard Tobey left no issue. George O. Tobey, Senior, left two children, Alice Virginia Tobey and George O. Tobey, Junior, both of whom survived the testatrix but died without issue before August 7, 1931.

The fund concerning which instructions are sought was created by article eleventh of the verbose but carefully drawn will, which provided two trust funds of $25,000 each for Alice Virginia Tobey and George O. Tobey, Junior, respectively. Combined, they now amount to about $70,000. For the terms of the trust article eleventh refers to article fifteenth. By reference to that article, which gives nearly all the residue in trust for the children of George O. Tobey, Senior, in the event that both Gerard and Horace should fail to survive the testatrix, we learn that, after the payment of certain income to said children, the principal of their shares is to be paid over to them, respectively, at the expiration of twenty years from the death of the testatrix, namely, on August 7, 1931, if both be then living, and if either be dead his or her share is to be paid over to his or her issue. If both be dead on August 7, 1931, without having left issue (which actually happened), then article fifteenth provided that the whole combined trust fund should be paid over ‘to those who would then be my heirs at law if I had then died intestate,’ except that certain legacies given by article twenty-fourth were first to be paid, if not already paid out of other funds created by the will.

These legacies have never been paid, because the ample residuary estate out of which they were to be paid was not to become available for their payment unless both Gerard and Horace should fail to survive the testatrix. Since Horace survived her, he took the residue absolutely. Unless the trust funds under article eleventh are available for the purpose, nothing can be paid on account of the legacies. If such funds are available, they have become so only because both Alice Virginia Tobey and George O. Tobey, Junior, happened to die without issue prior to the time set for distribution. These funds amount only to about $70,000, whereas the aggregate amount of the legacies is $350,000. The legacies are as follows: (1) $75,000 to The Trustees of Donations to the Protestant Episcopal Church, of which $50,000 is to be used as a fund for aid to disabled and destitute clergymen and $25,000 is to be used for improvements to a certain church in Wareham (see Chase v. Dickey, 212 Mass. 555, 566, 99 N. E. 410); (2) $50,000 to the Boston Safe Deposit and Trust Company in trust for the establishment of an old ladies' home in Wareham; (3) $75,000 to the town of Wareham for the obtaining of a site and the erection of a town house; and (4) $150,000 to the town of Wareham for the establishment and maintenance of an asylum and school for the destitute children of Wareham and Middleborough. At its annual meeting for 1932, the town of Wareham voted to accept the legacy for the town house. At that meeting, it was voted ‘to indefinitely postpone’ action with respect to the legacy for the asylum and school, but on June 13, 1933, it was voted to accept that legacy. See Adams v. Townsend Schoolhouse Building Committee, 245 Mass. 543, 139 N. E. 803. These votes expressly provided for the acceptance of pro rata shares of the funds...