Codman v. Krell

• Decision Date: 05 September 1890
• Citation: 152 Mass. 214,25 N.E. 90
• Parties: CODMAN v. KRELL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

152 Mass. 214

25 N.E. 90

CODMAN

v.KRELL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 5, 1890.

Reserved case from supreme judicial court, Suffolk county.

Bill by Robert Codman against Paul Krell, Isaac W. Wheelwright, Jane Caldwell, Catharine M. Atkinson, Harriet H. Barton, and others, to obtain a construction of the following declaration of trust made by William Wheelwright, Sr., deceased: “Fifty shares of the above-named railroad stock, or the proceeds thereof in other investments in case they shall be sold, the said Codman shall hold in trust for the benefit of my wife, Martha Gerrish Wheelwright, during her life, paying over to her, from time to time, the net income thereof, upon any order or receipt signed by her. At the decease of the said Martha G. Wheelwright, the said trustee shall continue to hold the said property now represented by said fifty shares of railroad stock for the benefit of my children, William Wheelwright, Jr., and Maria Augusta Wheelwright, paying over the net income thereof to them in equal shares, upon their several orders or receipts. And when, after the decease of my said wife, my son, the said William Wheelwright, Jr., shall have attained the age of twenty-five years, or if he shall sooner die, then, at the time he would have attained such age had he lived, the said trustee shall divide the whole principal sum then in his hands, now represented by said fifty shares of railroad stock, and all accumulation thereof, into two equal parts or portions, and he shall convey, transfer, and deliver one of the said parts or portions to the said William Wheelwright, Jr., or, in case of his decease, to his heirs at law, as and for his or their absolute property; and the other of said parts or portions the said trustee shall convey, transfer, and deliver to the said Maria Augusta Wheelwright, free from the control of any husband, or, in case of her decease, to her heirs at law, as and for her or their absolute property. And, in case either or both of my said children shall decease prior to their mother, their respective shares of said property shall be conveyed, transferred, and delivered to his or her or their respective heirs at law in same manner as if he or she or they had deceased subsequently to my said wife.” Defendant Krell is the husband of said Maria Augusta Wheelwright, deceased. The other named defendants are respectively the brother and sister of William Wheelwright, Sr., deceased, and the sisters of Martha Gerrish Wheelwright, deceased, his wife, and consequently not of kin to William Wheelwright, Jr., deceased.

H.A. Johnson, for Jane Caldwell et al. C.K. Cobb, for defendant Paul Krell.

R. Codman, Jr., for administrator of William Wheelwright.

W.G. Russell and J. Fox, for residuary legatees under will of Martha G. Wheelwright.

L.H.H. Johnson, for Isaac W. Wheelwright.

FIELD, J.

The last clause of the first article of the declaration of trust means, we think, that, if either or both of the children die before their mother, their respective shares shall be conveyed to his or her or their heirs at law in the same manner as if he or she or they had died immediately after the death of the mother. Both children died before the mother, and their heirs at law are to be determined as of a time immediately after her death. The mother died August 30, 1888. The donor, her husband, died on September 26, 1873. Neither the father nor the mother is an heir within the meaning of this clause, because neither was alive at the time the right of property vested in the heirs of the children. Fargo v. Miller, 150 Mass. 225, 22 N.E.Rep. 1003; Knowlton v. Sanderson, 141 Mass. 323, 6 N.E.Rep. 228; Denny v. Kettell, 135 Mass. 138. The property was wholly personal property when given, and it has always remained personal...