Bradlee v. Converse

• Decision Date: 30 March 1945
• Citation: 318 Mass. 117,60 N.E.2d 345
• Parties: BRADLEE v. CONVERSE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 117

60 N.E.2d 345

BRADLEE

v.CONVERSE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 30, 1945.

Petition by Edward C. Bradlee, trustee under the will of Esther S. S. Pettee, against Herbert L. Converse and others for instructions as to distribution of the trust estate. From a decree of the probate court, defendants appeal.

Reversed.Appeal from Probate Court, Suffolk County; R. Gardiner Wilson, Jr., judge.

Before FIELD, C. J., and LUMMUS, DOLAN, RONAN, and SPALDING, JJ.

J. A. Greer, of Boston, for trustee.

H. S. Davis, of Boston, for Herbert L. Converse and others.

L. A. Ford, of Beverly, and J. C. Birmingham, of Boston, for J. Brooks Gilbert and others.

LUMMUS, Justice.

The trustee under the will of Esther S. S. Pettee, late of Boston, who died on May 26, 1900, at the age of eighty-four years, brings this petition for instructions as to the distribution of the trust estate. The will was drawn by an experienced attorney, and was executed on April 28, 1888. It was proved and allowed on June 21, 1900.

The trust fund consisted of the residue of the estate. The net income was to be paid to Amy E. Pettee, the adopted daughter of the testatrix, during her life, and on her decease the trustee was ‘to divide, pay over and convey one-half of said fund to and among those of the issue of said Amy who shall survive her, in equal shares by right of representation and the other half thereof or the whole if no issue of said Amy shall survive her, in equal shares by right of representation to and among those of my nephews and nieces who shall then be living, including by right of representation, the issue then living of any nephew or niece of mine then deceased.’

Amy E. Pettee died without issue on August 23, 1943, and thereupon the trust estate became distributable to the living nephews and nieces of the testatrix and the issue of those deceased. Everyone concedes that the distributees are to be determined as of the date of the death of the life beneficiary.

When the testatrix died, her nearest relatives (apart from her adopted daughter) were a brother, Williams B. Brooks, who had six children; a sister, Hannah E. Converse, who had two children; and a nephew, F. Herbert Winsor, the son of a deceased sister Lydia Sophronia Winsor. When the life beneficiary died in 1943, F. Herbert Winsor had died without issue, and both Williams B. Brooks and Hannah E. Converse had died leaving issue. It is among the descendants of Williams B. Brooks and Hannah E. Converse that we must find the ‘nephews and nieces' and the ‘issue’ of deceased nephews and nieces, who were to take upon the death of the life beneficiary on August 23, 1943. On that date in the Brooks family one daughter of Williams B. Brooks was still living, together with the issue of four others of his children who had died. On the same date in the Converse family neither of the two children of Hannah E. Converse was living, but each left issue living on that date. The members of the Brooks family contend that they are entitled among them to five sevenths of the trust fund, on the theory that each of th seven nephews and nieces who were living on that date or who had died leaving issue living on that date constitute a stirpe entitled to an equal share of the fund. The judge in the Probate Court so decided. The members of the Converse family appealed, contending that they, taken collectively, are entitled to half the fund.

In the ordinary use of language distribution by right of representation, or, as it is more technically called, per stirpes, is opposed to distribution in equal shares among persons, or per capita. Some way of reconciling these expressions must be discovered, or one of them must be rejected and given no effect. The latter course is never adopted except as a last resort. Shattuck v. Balcom, 170 Mass. 245, 251, 49 N.E. 87;Sears v. Childs, 309 Mass. 337, 346, 347, 35 N.E.2d 663;Matter of Buechner, 226 N.Y. 440, 123 N.E. 741. In this case we think it easy to reconcile them. In our opinion, the words ‘in equal shares by right of representation’ mean per stirpes, with equality among the stirpes. Balcom v. Haynes, 14 Allen 204, 205;Hall v. Hall, 140 Mass. 267, 271, 2 N.E. 700;Siders v. Siders, 169 Mass. 523, 526, 48 N.E. 277;Coates v. Burton, 191 Mass. 180, 182, 77 N.E. 311;Thompson v. Thornton, 197 Mass. 273, 276, 83 N.E. 880;McClench v. Waldron, 204 Mass. 554, 556, 558, 91 N.E. 126;Boston Safe Deposit & Trust Co. v. Doolan, 307 Mass. 233, 238, 29 N.E.2d 844;Agricultural National Bank v. Miller, 316 Mass. 288, 293, 55 N.E.2d 442;Matter of Diefenbacher's Estate, 165 Misc. 86, 300 N.Y.S. 370; Robinson v. Shepherd, 32 Beav. 665; Gibson v. Fisher, L.R. 5 Eq. 51; In re Alexander, [1919] 1 Ch. 371.

The remaining question is whether the living...