Boston Safe Deposit & Trust Co. v. Dean

• Decision Date: 25 February 1972
• Citation: 361 Mass. 244,279 N.E.2d 902
• Parties: BOSTON SAFE DEPOSIT AND TRUST COMPANY et al., trustees v. Benjamin P. DEAN, Second, et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 902

279 N.E.2d 902

361 Mass. 244

BOSTON SAFE DEPOSIT AND TRUST COMPANY et al., trustees v. Benjamin P. DEAN, Second, et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 10, 1971.

Decided Feb. 25, 1972.

Neil R. Markson, Boston, stated the case.

John T. Collins, Boston, for Richard L. Dean and another.

Albert M. Fortier, Jr., Boston, for Richard S. Bowers, guardian ad litem.

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

CUTTER, Justice.

The trustees under two trust indentures, made prior to 1958 by Langdon Pearse (the settlor), seek instructions and declaratory relief concerning whether and to what extent Richard L. Dean, an adopted son of Benjamin Palmer Dean (in turn a son of Philip L. Dean, mentioned below), is entitled to share in the current trust income (and hereafter in the corpus) and to be regarded as a beneficiary of each trust. A guardian ad litem was appointed for minors and unborn and unascertained persons who are or may become interested in the trust as issue born in lawful wedlock (biological issue) of Philip L. Dean, named in the trusts as a beneficiary. A separate guardian ad litem was appointed to represent Richard L. Dean, Jr. (the minor son of Benjamin's adopted son), and unborn or unascertained persons with similar interests. A judge of the Probate Court, by decree, instructed that Richard L. Dean, who was adopted by Benjamin Palmer Dean and his wife in California in 1952, was not entitled to any present income from the portion of the trust corpus formerly held for the benefit of Benjamin Palmer Dean and ruled that 'no further instructions are presently appropriate.' Richard L. Dean and the guardian ad litem for his son (Richard Jr.) appealed. The case is before us on the pleadings and a statement of agreed facts.

On April 8, 1940, the settlor executed a revocable trust agreement. This was amended on October 19, 1953, and again on October 17, 1955 (see fn. 2). The settlor executed another revocable trust agreement on October 19, 1953, and this was amended on October 17, 1955 (see fn. 2). The provisions of these trust agreements, as amended, which are pertinent to this case are substantially identical. The following excerpts from the 1940 agreement, as amended, adequately set out the provisions concerning which instructions now are sought.

Article II(b), as amended, read: 'Upon the death of the survivor of the . . . (settlor who died July 20, 1956) and his wife, Eleanor H.D. Pearse (who died August 3, 1961) the Trustees shall divide the whole of the then trust estate . . . into six equal portions if at least one member of each of the following six groups shall be then living, or if no member of one or more of said groups shall be then living, the Trustees shall divide the whole of said trust estate into as many equal portions as there may be groups having at least one member then living, and dispose of each such portion as hereinafter provided. These groups are: . . . Group Six: Philip Dean, . . . (who survived his wife and died January 26, 1964) and his issue by his deceased wife, Frances Dean.'

Article II(c)(6), as amended, read: 'If at least one of . . . Group Six shall then be living, but . . . Philip Dean and Benjamin Palmer Dean (died July 16, 1967) and Florence Dean Prosser (still living in 1969) . . . his children by his deceased wife, Frances Dean, shall all be then deceased, the Trustees shall . . . pay over one such portion to the issue then living of said Philip Dean by his said deceased wife, such issue taking by representation; and if said Philip Dean or either of his said children shall be then living, the Trustees shall hold one such portion in trust and pay the net income . . . to . . . Philip Dean so long as he shall live and after his death to his issue by his said deceased wife, such issue taking by representation, and at the death of the survivor of said Philip Dean and his two children above named, the Trustees shall . . . pay over the principal . . . to the issue then living of said Philip Dean and his said deceased wife, such issue taking by representation.' ²

When the settlor's wife Eleanor, died on August 3, 1961, the trusts set forth above for Group 6 came into operation. Philip Dean and his two children, Benjamin Dean and Florence Prosser, then were all alive. ³ The provisions of art. II(c)(6), as amended, called for distribution of income after Philip's death to Benjamin Dean and his sister Florence Prosser. After Benjamin's death on July 16, 1967, Benjamin's share of income went to his issue by right of representation. In the absence of indication ⁴ in either trust (and there is no such indication) that persons adopted by one of Philip Dean's biological issue were to be treated as issue, the rule of G.L. c. 210, § 8, prior to its amendment by St.1958, c. 121, § 1, would require exclusion under this pre-1958 trust of Richard L. Dean, the adopted child of Benjamin, from any share of income.

The question for our decision is whether the situation has been affected in any way by the further amendment of G.L. c. 210, § 8, by St.1969, c. 27, § 1 (see Billings v. Fowler, Mass.1972, 279 N.E.2d 906, 909, fn. 3), in view of the express proviso in § 2 of the 1969 act that the new provisions of c. 210, § 8, 'shall not apply to any . . . trust settlement . . . executed or effective prior to' August 26, 1958, 'with respect to any interests or right . . . which had vested prior to the effective date (September 1, 1969) of this act.'

On September 1, 1969, the income beneficiaries of art. II(c)(6), apart from Florence Prosser, were the four biological children of Benjamin Dean. Their equitable income interests (pur auter vie, i.e., for the life of Florence Prosser) and rights all had vested in right (in the case of Benjamin's children) at least as early as Benjamin's death on July 16, 1967. There was thereafter no possibility of any change in their respective...