Clarke v. Fay
| Decision Date | 25 February 1910 |
| Citation | 91 N.E. 328,205 Mass. 228 |
| Parties | CLARKE v. FAY et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Dickson & Knowles, for appellant.
Clarence F. Eldredge and Harold Caverly, for appellee.
Rufus B. Sprague, pro se.
This is a bill in equity brought by a creditor of Franklin L. Fay to reach and apply his interest under the will of his grandfather, Franklin L. Fay, toward the payment of the plaintiff's debt. More than four months after the filing of the bill the defendant was adjudicated a bankrupt, and his trustee has become a party hereto. The testator at his death in 1885 left five daughters and one son, the latter being the father of the defendant. The will created certain trusts for the benefit of the widow and a brother of the testator during their several lives, the other provisions of the will being subject to these life interests. The general scheme of the other provisions is in substance as follows: All the remainder of the estate is left in trust for the testator's children for life, they to receive the income and upon the death of any of the testator's children leaving issue then living the issue is to take the parent's share, and if any of the children die before the testator, leaving issue living at his death, such issue shall take its parent's share, and if such issue is a minor the share is to remain in trust until such minor reaches majority. in trust until such minor reaches majority. Upon the death of any of the testator's children his or her share is to go to the issue then living. If any of the testator's children shall die leaving no issue living, then his or her share is to fall in for the benefit of the other living children of the testator provided that the lawful issue then living of any other child, who shall have theretofore deceased, shall take and have the same part of such principal which would have been added to the share which would have been held for the benefit of the deceased parent of any such issue if then living. But in the event of all of the testator's children dying and leaving no issue living, then to the testator's brothers and sisters the living, the issue then living of a deceased brother or sister to take its parent's share, and in the event of the failure of all these then to the testator's heirs at law. The precise language of the will, so far as it describes the interest of the defendant, after providing for the trust for life for the benefit of his father and aunts, who were the children of the testator, is that the trustees are 'upon such child's [that is, child of the testator] death of convey, transfer and pay over the principal of the share so held for such child's benefit to such child's lawful issue then living by representation; but if such child shall die without leaving lawful issue living at the time of such child's death, them upon such child's death to add the principal of the share held for such child's benefit equally to the shares held for the benefit of my other children then living; * * * provided however that the lawful issue then living of any other child of mine who shall have theretofore deceased shall take and have * * * by right to representation the same part of such principal which would have been added to the share which would have been held for the benefit of such issue's deceased parent, if such issue's deceased parent was then living.' The defendant is married but has no children. He has two unmarried sisters, who, as well as himself, were born before the decease of the testator, and his father is still living. Of his five aunts, who survived the testator, one has since deceased leaving two unmarried minor daughters, one is a childless widow, two are married each having a married son without issue, and one is married having a minor unmarried son. The question is whether the interest of the defendant in the estate of his grandfather can be attached and sold for the plaintiff'd debt, and whether any excess passes to his trustee in bankruptcy.
There can be no doubt that the direction to the trustees upon the death of each of the testator's children, including the defendant's father, to convey the share held for such child's benefit to 'such child's lawful issue then living by right of representation' created a contingent interest. The words 'then living' must refer to the death of the child and not of the testator. Whether the defendant will ever take anything under this provision depends upon the contingency of his surviving his father. It is wholly uncertain whether this event will ever happen. Hulburt v. Emerson, 16 Mass. 241; Olney v. Hall, 21 Pick. 311; Thomson v. Ludington, 104 Mass. 193; Butterfield v. Hamant, 105 Mass. 338; Bamforth v. Bamforth, 123 Mass. 280; Smith v. Rice, 130 Mass. 441; Denny v. Kettell, 135 Mass. 138; Colby v. Duncan, 139 Mass. 399, 1 N.E. 744; Wood v. Bullard, 151 Mass. 324-333, 25 N.E. 67, 7 L. R. A. 304; Harding v. Harding, 174 Mass. 268, 54 N.E. 549; Cronan v. Adams, 185 Mass. 436, 70 N.E. 423; Gardiner v. Savage, 182 Mass. 521, 65 N.E. 851; Crapo v. Price, 190 Mass. 317, 76 N.E. 1043; Bigelow v. Clap, 166 Mass. 88, 43 N.E. 1037; Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35, 81 N.E. 654; Hale v. Hobson, 167 Mass. 397, 45 N.E. 913; Coveny v. McLaughlin, 148 Mass. 576, 20 N.E. 165, 2 L. R. A. 448; Golladay v. Knock, 235 Ill. 412 85 N.E. 649, 126 Am. St. Rep. 224; Jones v. Jones, 1906, 1 Ch. 570; Lawrence v. Phillips, 186 Mass. 320, 71 N.E. 541; Dary v. Grau, 190 Mass. 482, 77 N.E. 507; Jackson v. Jackson, 153 Mass. 374, 26 N.E. 1112, 11 L. R. A. 305, 25 Am. St. Rep. 643; Morrill v. Phillips, 142 Mass. 240, 7 N.E. 771; McCreary v. Coggeshall, 74 S.C. 42, 53 S.E. 978, 7 L. R. A. (N. S.) 433; Fisher v. Wagner, 109 Md. 243, 71 A. 999, 21 L. R. A. (N. S.) 121; Reichard's Appeal, 116 Pa. 232, 9 A. 311; Young v. Young, 97 N.C. 132, 2 S.E. 78; Darnell v. Barton, 75 Ga. 377; Teets v. Weise, 47 N. J. Law, 154; Howbert v. Cauthorn, 100 Va. 649, 42 S.E. 683; Hopkins v. Keazer, 89 Me. 347-356, 36 A. 615. See Lehndorf v. Cope, 122 Ill. 317-331, 13 N.E. 505.
But this determination is not decisive of the ultimate question in the case. A closer analysis of the will is necessary to ascertain with precision the interests which it creates for the benefit of the defendant. The interest which he has in the share, of which his father enjoys the income during life, is contingent upon his surviving his father, and upon that alone. This interest may be treated as a unit. It may in fact be larger or smaller, dependent upon the decease of one or more of his aunts without leaving surviving issue prior to the decease of his father, and also in some degree upon whether either or both of his sisters predecease him without leaving surviving issue and further upon whether other brothers or sisters may be born and survive his father, but these are considerations which concern only the amount, and not the fact of his interest. His realization in actual possession of this unit, whatever its size may finally turn out to be, depends upon the single contingency that he survive his father. But he has another and independent beneficial possibility under the will; namely that during his life one or more of his aunts may survive his father and die without leaving lawful issue then surviving them. In such an event he will share, with the other then living issue of his father the portion of which his father would have received the income during his life had he survived. The reduction to possession by the defendant of this possible benefit is more contingent than that first described for the reason that it depends not only upon his outliving his father, but upon the additional uncertainties that he outlive the aunt, and that she survive his father and then decease without leaving lawful issue then surviving her. The point presented for decision is whether either of these interests is of such a nature that it can be reached by a creditor's bill under Rev. Laws, c. 159, § 3, cl. 7.
We consider first his interest in the share of which his father enjoys the income during his life. As the question is one of nicety and difficulty, it will be helpful to review some of our cases. In Gardner v. Hooper, 3 Gray, 398, the will under consideration, after creating a life estate provided that at its determination the executor should divide the estate into fifths, and pay one share to each of the testator's five children, and then proceeded: 'But should any of my children die before my wife leaving issue living at the time of her decease I give to such issue the share which the parent would have had if living, and if any should die before my wife and without leaving issue at the time of her decease, I give the share of such to be equally divided, one part to each of my children who may then be living, and one part to the issue of each that may not be living.' The question was as to the right of one of the daughters during the life of the testator's widow, and it was held that although the gift was so far contingent that if she failed to survive the widow it would not come to her, yet that such a right was not a mere possibility but an existing interest, which, though in a certain sense contingent, would pass to an assignee in insolvency. In Nash v. Nash, 12 Allen, 345, the will provided that at the termination of a life estate the property should go 'to such of my children as may be then living.' It was held that during the life of the life tenant the interest of one of the children although contingent and not vested was something more than a mere possibility and would pass to an assignee in insolvency. In Dunn v. Sargent, 101 Mass. 336, a life estate was created for the benefit of a son with remainder to his children...
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