Cooper v. Monroe, R.B.&L.R. Co.

• Decision Date: 07 January 1921
• Citation: 129 N.E. 436,237 Mass. 192
• Parties: COOPER v. MONROE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 192

129 N.E. 436

COOPER

v.MONROE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1921.

Appeal from Supreme Judicial Court; Suffolk County.

Suit by Frederick F. Read against William I. Monroe and others. On plaintiff's death and the death of his executrix, Helen S. Cooper, administratrix with the will annexed, was admitted as party plaintiff. From a final decree dismissing the bill, plaintiff appeals. Affirmed.

See, also, 235 Mass. 33, 126 N. E. 286.

Frank Hendrick, of New York City, and Ballard & Little, of Boston, for appellant.

McLellan, Carney & Brickley and Hugh D. McLellan, all of Boston, for appellees.

CROSBY, J.

This is an appeal from a final decree confirming a master's report and dismissing the bill. The bill was brought by Frederick F. Read, who has since deceased; thereafter his executrixwas substituted as plaintiff and upon her death the administratrix of his estate with he will annexed was admitted as a party plaintiff.

The master's report recites that he met the parties, ‘heard their evidence, examined their papers, documents, and vouchers, and now make[s] report of * * * [his] findings to the court.’ He further states in the report:

‘The case was referred to me after it had been fully heard by a former master. Pursuant to the directions of the court I have considered the evidence introduced before that master in making my report, a complete transcript of the testimony and all the exhibits having been furnished to me.’

Frederick F. Read, the original plaintiff (who will hereafter be referred to as the plaintiff), was the grandson of Josian P. C. Marshall and his first wife. The master found that William Marshall, the greatgrandfather of the plaintiff, died intestate in the year 1860, leaving a widow, Susan Marshall, and as his only heirs at law his four children, William F., John W. S., Josiah P. C., and Susan G.; that Susan Marshall, the widow, died in 1869; that William F. Marshall died in 1888, and John W. S. Marshall died in 1893; that both were unmarried and without issue; that Susan G. Marshall married Austin J. Coolidge whom she survived, and died without issue in 1895; that Josiah P. C. Marshall, by his first wife, had a daughter, Catherine Cooke Marshall, who was living at the time of the death of William Marshall in 1860; that she married William Read, and her son, the plaintiff, was born in 1873; she died in 1877. Josiah P. C. Marshall, after the death of his first wife, married Elizabeth Taylor. He died in 1915; his wife died in 1916 leaving no issue; the plaintiff died in 1917.

The bill in substance alleges, and the plaintiff contends, that the four children of William Marshall each took from him the real estate of which he died seized upon a ‘condition’ or ‘trust’ that no part of it should be alienated during the lifetime of any of the children and upon the death of the survivor of them it was to be vested in the heirs of William Marshall then living. It is also the contention of the plaintiff that, under the terms of the condition or trust, upon the decease of Josiah P. C. Marshall, the last surviving child, he became entitled to the remainder and the fee in all the realty of William Marshall which had originally vested in the four children in 1860 or the proceeds from the sale of such real estate, or other land bought with such proceeds. The bill seeks to establish a trust in the various parcels of real estate therein described and the plaintiff's title to the fee in the remainder thereof.

We do not deem it necessary to refer in detail to the many allegations of the bill or to the various parcels of real estate therein described, as the allegation that all the real estate left by William Marshall was subject to a ‘condition’ or ‘trust’ lies at the foundation of the plaintiff's claim.

It does not clearly appear from the bill in what manner the alleged condition or trust was created, none is alleged to have been established by William Marshall by any instrument, unless it is to be inferred that it was created by will. But the master found that William Marshall died intestate. He states that:

‘At the hearing the plaintiff claimed that a writing alleged to be a will of William Marshall, which was never probated, should be admitted in evidence as proof of the ‘condition’ or ‘trust’ or ‘life estate’ in which he asserted the children of William Marshall took his real estate. This paper was marked for identification, and was excluded by the master.'

The finding that the alleged will was never probated...