Brummett v. Hewes
| Citation | 40 N.E.2d 251,311 Mass. 142 |
| Parties | BRUMMETT et al. v. HEWES et al. |
| Decision Date | 26 February 1942 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Suit by John L. Brummett and others, trustees under the will of James A. Hewes, deceased, against Bessie C. Hewes and others, for instructions. On appeal and report from a decree of the Probate Court.
Decree reversed and decree directed to be entered.Appeal and Report from Probate Court, Middlesex County; Beane, Judge.
Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.
A. L. Brown, of Boston, for petitioner.
J. Wiggin and J. A. Plummer, both of Boston, for respondent Hewes.
J. G. Wright, of Boston, for next friend.
The trustees under the will of James A. Hewes, late of Melrose, pray instruction as to whether they are bound to pay to the testator's daughter, Bessie C. Hewes, the sum of $1,000 per month ‘regardless of whether the income of the trust is sufficient to pay this sum.’ Other questions upon which they seek instruction are subsidiary to the foregoing and need not now be stated.
The paragraphs of the will bear no numbers in the original will, but for convenient reference those disposing of the testator's property will here be treated as if numbered consecutively.
Paragraph 1 gives to the testator's daughter, Bessie C. Hewes, all his household effects, clothing, jewelry, personal articles and automobiles.
Paragraph 2 orders the executors to pay to Bessie during the first year after the testator's decease such sums out of income ‘as in their judgment may be necessary and proper for her suitable and reasonable support in the manner she has been accustomed to,’ and if income is insufficient to pay the same from principal.
Paragraph 3 states that the will is made in contemplation of marriage between the testator and Mrs. Rose E. Everett and orders the executors to pay to Mrs. Everett during the first year $1,000 per month ‘out of the income or principal of my estate as stated in the foregoing provisions for my said daughter.’
‘Paragraph 5 creates the trust and provides for the payment from the income of $1,000 monthly to Mrs. Everett during her lifetime.
Paragraph 6 provides for the payment of the balance of the income to Bessie during her life.
Paragraph 7 is as follows: ‘In case, however, that the balance of net income payable to my said daughter Bessie in any year after the first year from the date of my decease is less than Twelve Thousand Dollars ($12,000), then for any year after said first year that said net income payable to my said daughter is less than Twelve Thousand Dollars ($12,000), my said Trustees shall pay to my said daughter from the principal of the trust a sufficient sum to make the sum received by my said daughter equal to Twelve Thousand Dollars ($12,000) annually.’
Paragraphs 8 and 9 deal with the disposition of the income and the ultimate distribution of the principal after the deaths of Bessie and Mrs. Everett. Paragraph 8 includes a provision for monthly payments from income to Mary F. Upton and Mary L. Mason during their respective lives.
Pragraph 10 reads: ‘I authorize and empower my said Trustees, or their sucessors, to pay to my said daughter Bessie and to said Mrs. Rose E. Everett in case that she shall become my widow, such portions of the principal of the trust estate as in the unanimous judgment and discretion of the Trustees for the time being seems reasonable, expedient and proper in case the income from the trust estate in any year seems insufficient for their reasonable and proper support and maintenance in the way and manner they have been accustomed to considering all the then facts and circumstances, and the decisions of said Trustees concerning such payments of principal to or for the benefit of my said daughter Bessie and to said Mrs. Rose E. Everett in case that she shall become my widow, shall be final and binding upon all parties and be beyond appeal.’
Paragraph 11 reads: ‘In case that the net income of my estate at any time is not sufficient to pay the monthly payments as herein provided for to my said daughter Bessie, to Mrs. Rose E. Everett, to my said sister Mary F. Upton, and to said Mary L. Mason, then I authorize the Trustees for the time being to make up such dificiency of said payments from the principal of said trust estate and any such deficiency so paid out of the principal shall not be replaced to the principal out of future income and the necessity for such payments out of principal shall rest entirely upon the judgment and discretion of said Trustees, and their action shall be final and beyond appeal.’
Paragraph 12 recites the testator's active interest in Hewes and Pottor Incorporated, in which he states that the greatest part of his estate is invested. He expresses his desire to see the corporation's business continue and prosper. He requests and authorizes his executors and trustees ‘to continue’ his ‘interest’ therein as long as in their judgment they may safely do so, ‘giving them full power to so act using a wise discretion.’ He requests them so to manage his investment in that corporation that besides obtaining a satisfactory income therefrom the interests of his ‘long time friends connected with said Corporation will be favored and conserved and not injured by the hasty or untimely withdrawal or sale of * * * [his] shares.’ He adds, however, that he leaves his executors and trustees ‘to act in these matters as they may deem best,’ and that he imposes ‘no trust upon them, express or implied.’
Other provisions of the will, in our view, have little or no bearing on the issues, and need not be stated. All have been considered. Mrs. Everett died before the testator, and the issue now lies between the testator's daughter, Bessie C. Hewes, and possible remaindermen who may take income or principal after her death.
Bessie C. Hewes relies upon the seventh paragraph as rendering it mandatory upon the trustees to pay to her from principal a sufficient sum to make the amount received by her $12,000 annually, whenever the sum payable to her out of income is less than that amount. On the other hand, it is the contention of the next friend appointed by the Probate Court to represent persons not ascertained or not in being that other parts of the will, taken together, and especially the eleventh paragraph, show that the testator intended that any payments to his daughter out of principal...
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