Cronan v. Cronan

• Decision Date: 28 May 1934
• Citation: 190 N.E. 721,286 Mass. 497
• Parties: CRONAN at al. v. CRONAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 497

190 N.E. 721

CRONAN at al.

v.CRONAN et al.

Supreme Judicial Court of Massachusetts, Essex.

May 28, 1934.

Petition from Probate Court, Essex County; E. B. O'Brien, Judge.

Petition for instructions by Sara A. Cronan and others, as trustees under the will of Thomas F. Cronan, deceased, against Sara A. Cronan and others, heard by a judge of probate court who reserved decision and reported the case to the Supreme Judicial Court.

Judgment in accordance with opinion.

W. G. Clark and C. R. Clark, both of Gloucester, for respondents Sara A. Cronan and others.

J. W. Sullivan, of Lynn, W. H. McSweeney, of Salem, and J. F. Doyle, of Lynn, for respondents John Cronan and others.

RUGG, Chief Justice.

This is a petition by the trustees under the will of Thomas F. Cronan, late of Salem, for instructions as to their powers and duties under the will of the testator. The beneficiaries under the will are the parties defendant. It is alleged in the petition that the testator died on March 3, 1923, leaving a will under which the petitioners were appointed trustees in May, 1923. The trust property consists, in part at least, of houses and real estate. The provision of the will as to which instructions are sought is of the tenor following: ‘I want the Executors not to dispose of any of my property for ten years. If at the end of that time the Executors wish to dispose of any of the property and can do so to a good advantage it is my wish that they do so. I wish to state that all my property at the end of ten years shall be divided into twelve twelfths, and if any of these that I mention should pass away before the expiration of the ten years their share shall go to their children if they have any and if not, it shall go to the remaining heirs. Now I shall name the heirs.’ Then follows a list of the heirs with a statement of the twelfths to be given to each, and allegations as to the present holders of the title. It is alleged further that the real estate market is bad and that the real estate of the trust ‘cannot be sold to good advantage or for any reasonable price at this time.’ The prayers in substance and effect are for instructions concerning (1) the time of the termination of the trust, and (2) the powers and duties of the trustees in the present real estate market. All the beneficiaries of the trust have answered. Some admit and others deny the allegations as to the condition of the real estate market. It does not appear that any oral evidence was heard. The case comes before us by action of the probate judge stated in these words: ‘By agreement of the parties and without making any decision thereon I reserve and report the following questions of law for the construction of the Supreme Judicial Court: 1. When does the Trust set forth in the petition for instructions terminate? 2. Is it mandatory or discretionary on the part of the Trustee to terminate the Trust at this time?’ The case comes before us on a rather bare record. There are no allegations and no findings of fact concerning the nature of the several parcels of real estate included in the trust. There are no findings as to the disputed issues of fact raised by the pleadings. There is nothing to show whether it is practicable to make a fair division of the real estate without sale. It is with hesitation that we treat the case as rightly before us in these circumstances.

Only the questions of law apparent upon the record are presented for consideration. G. L. (Ter. Ed.) c. 215, § 13; Thompson v. Barry, 184 Mass. 429, 431, 68 N. E. 674. The trustees have a right to request instructions concerning their immediate and present duties, but not as to those which may arise in the future. Bullard v. Chandler, 149 Mass. 532, 537, 21 N. E. 951,5 L. R. A. 104;Parkhurst v. Ginn, 228 Mass. 159, 171, 172, 117 N. E. 202, Ann. Cas. 1918E, 982;Old Colony Trust Co. v. Treasurer & Receiver General, 243 Mass. 543, 547, 137 N. E. 874;Boyden v. Stevens (Mass.) 188 N. E. 741.

Some of the beneficiaries contend that the trustees are under a present duty under the terms of the will, regardless of the condition of the real estate market, to sell and distributethe estate, or to make a division without sale. Thus arise questions of law as to the meaning of the paragraph already quoted from the will.

The testamentary directions as to the termination of the trust are not clear. The will was not drawn with the care of a competent draftsman. The rule of interpretation is that the intent of the testator must be gathered from the entire will, attributing due weight to all its words and assuming that the different provisions were intended to be harmonious with each other, and then that intent must be given effect unless contrary to some positive rule of law. Ware v. Minot, 202 Mass. 512, 516, 88 N. E. 1091;Shattuck v. Balcom, ...