Boyden v. Stevens

• Decision Date: 23 January 1934
• Citation: 188 N.E. 741,285 Mass. 176
• Parties: BOYDEN v. STEVENS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

285 Mass. 176

188 N.E. 741

BOYDEN

v.STEVENS.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 23, 1934.

Appeal from Probate Court, Suffolk County; Dolan, Judge.

Petition for instructions by Albert Boyden, trustee under the will of Walter H. Edgerly, against Nathalie A. Stevens. From the final decree, both petitioner and Nathalie A. Stevens appeal.

Reversed, with directions.Ropes, Gray, Boyden & Perkins, of Boston(C. H. Smith, of Boston, of counsel), for appellant Albert Boyden.

F. H. Stevens and J. T. Fahey, both of Boston, for appellant Nathalie A. Stevens.

Robert Homans, of Boston, guardian ad litem, pro se.

LUMMUS, Justice.

Walter H. Edgerly died in 1906, testate, leaving a widow Nathalie A. Edgerly, now Nathalie A. Stevens, and a daughter Madeline who died in 1907, a minor and unmarried. Any interest of Madeline has passed to the widow as her sole heir at law and next of kin.

The will gave the sum of $50,000, and also the residue of the estate, to Roland W. Boyden ‘in trust, for the benefit of my wife and children, if any, the income to be paid to my wife during her life. My trustee shall at any time have power in his discretion to pay over to my wife, or to expend for her benefit or for the maintenance and education of my children or any of them, such portion of the principal as he may deem advisable. After the death of my wife, so much of the income as my trustee may deem advisable shall be paid over to, or be expended for the maintenance, education and support of my children, if any, or the issue of any child who may have deceased, until my youngest living child shall reach the age of twenty-five (25) years, or until all of my children shall have deceased, whichever event first occurs. The principal of the trust fund shall then be divided equally among my children then living and the issue of any child who may have deceased, such issue to take such child's share by right of representation. Upon the death of my wife, if no issue of mine survive her, or upon subsequent failure of my issue prior to the time above fixed for distribution of the principal, the trust property shall be distributed as if I had died intestate.’ Another article of the will provided in part, ‘The interests of all beneficiaries shall not be subject to attachment or execution, and shall not be anticipated by assignment.’

On the death of Mr. Boyden in 1931, the petitioner Albert Boyden was appointed trustee in his stead. He asks to be instructed (1) whether as the successor trustee he may exercise the discretionary power to pay over to Nathalie A. Stevens of to expend for her benefit such portion of the principal as he may deem advisable, (2) whether upon the death of Nathalie A. Stevens the direction that the trust property shall be distributed ‘as if I had died intestate’ gives it to the heirs at the death of the testator (in which case Nathalie A. Stevens owns the entire remainder interest) or to the heirs determined as of the time of distribution (in which case the heirs are unascertained), (3) whether the entire beneficial interest in principal of the trust is now vested in Nathalie A. Stevens, and (4) whether he can properly pay over the entire principal of the trust to Nathalie A. Stevens at the present time. A guardian ad litem was appointed for persons unborn or unascertained, and he argues that these questions should be decided unfavorably to Nathalie A. Stevens. The Probate Court instructed the trustee that he has the power referred to in the first question, and that as to the fourth question ‘the trustee is not authorized to pay to her the entire trust estate in one payment, and that the only payments of principal which may properly be made to her are such as the trustee may deem advisable in the reasonable and fair exercise of the discretion reposed in him by the will.’ On the second and third questions the court declined to give instructions at this time. Both Nathalie A. Stevens and the petitioner appealed.

It is not now questioned that the petitioner has succeeded to the discretionary power of the original trustee. In this respect the Probate Court was right. Stanwood v. Stanwood, 179 Mass. 223, 227, 60 N. E. 584;Sells v. Delgado, 186 Mass. 25, 70 N. E. 1036;Shattuck v. Stickney, 211 Mass. 327, 97 N. E. 774. The first question upon which the petitioner asks to be instructed should be answered in favor of his power.

What is his discretionary power? In many of the reported cases a power to pay over principal was conditioned upon a determination by the trustee or other donee of the power that certain facts existed. In Corkery v. Dorsey, 223 Mass. 97, 111 N. E. 795, 796, for example, the power was to be exercised when in the judgment of said O'Callaghan (the trustee) the said Fay is ‘deserving and in need of aid.’ See, also, Lovett v. Farnham, 169 Mass. 1, 47 N. E. 246;Allen v. Hunt, 213 Mass. 276, 100 N. E. 552;Wright v. Blinn, 225 Mass. 146, 114 N. E. 79;Lumbert v. Fisher, 245 Mass. 190, 139 N. E. 446;Leonard v. Wheeler, 261 Mass. 130, 158, N. E. 502. But such a power may be given unconditionally. Burbank v. Sweeney, 161 Mass. 490, 37 N. E. 669;Ford v. Ticknor, 169 Mass. 276, 47 N. E. 877;Woodbridge v. Jones, 183 Mass. 549, 67 N. E. 878;Goodrich v. Henderson, 221 Mass. 234, 108 N. E. 1062;Homans v. Foster, 232 Mass. 4, 6, 7, 121 N. E. 417, and cases cited. Jones v. Old Colony Trust Co., 251 Mass. 309, 313, 146 N. E. 716;Merchants' Trust Co. v. Russell, 260 Mass. 162, 157 N. E. 338. The present will does not make the power conditional upon the actual existence of any tangible facts or the determination by the trustee that any such facts exist. All that is necessary is that the trustee ‘in this discretion’ shall ‘deem advisable’ the payment to Nathalie A. Stevens of the ‘portion of the principal’ that may be under consideration. See Sells v. Delgado, 186 Mass. 25, 70 N. E. 1036. It is true that even so broad a power as that is not an absolute power without limitation. ‘There is an implication, when even broad powers are conferred, that they are to be exercised with that soundness of judgment which follows from a due appreciation of trust responsibility. Prudence and...