Damrell v. Hartt

• Decision Date: 10 May 1884
• Citation: 137 Mass. 218
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John S. Damrell v. Lucy A. Hartt & another, executors

137 Mass. 218

John S. Damrell v. Lucy A. Hartt & another, executors

Supreme Court of Massachusetts

May 10, 1884

Suffolk. Appeal from a decree of the Probate Court appointing the appellee trustee under the eighth clause of the will of John Bacon, which was as follows: "I give devise, and bequeath one undivided half of all the real property that I may leave, not herein otherwise disposed of to my beloved son, John, to have and to hold the same to him, his heirs and assigns forever; and if he shall die not having disposed of the same by sale or by will, and leaving no issue living at the time of his death, then I give, devise, and bequeath the same to my dear daughter Ann Elizabeth, to have and to hold the same to her, her heirs and assigns forever; but if she shall have died before said John, leaving no issue living at the time of his death, then I give and devise the same to my friend John Chorley of Roxbury in the county of Norfolk, to hold the same to him, his heirs and assigns forever, but upon trust that he shall sell and dispose of the same as soon as may be, and divide the proceeds, after deducting expenses, among my next of kin then living according to the statute of distributions."

Hearing before Field, J., who reported for the consideration of the full court the following case:

It appeared that John Bacon died in 1854, seised in fee simple of certain parcels of real estate in the city of Boston. His will was duly proved and allowed on July 17, 1854. By the second clause of his will, he gave to his wife "the sum of eight hundred dollars a year, to be paid her annually during her natural life by my executor out of the rents of such real property as I may leave." His wife survived him, and died in 1858. He left two children, both of age at the time of his death, John Bacon and Ann Elizabeth Bacon. He also left two sisters and one brother, all of whom died in the lifetime of his son John, and five nephews, children of said sisters and brother, all of whom are now living, and who, at the time of the death of the testator's son John, would have been the next of kin of the testator, if the testator had then died without leaving issue.

The annuity of eight hundred dollars given to the widow of the testator was duly paid to the time of her death. All debts and legacies were paid within two years from the probate of the will. The testator's son John died on November 28 1881, intestate, leaving no issue and no widow. John had sold and conveyed certain parcels of the real estate devised to him in the eighth clause of the will, but had not disposed of certain other valuable parcels thereof, and it is in respect to this real estate not so disposed of that the appellee asks to be appointed trustee. Ann Elizabeth died in 1864, leaving no issue. John Chorley never accepted the trust, having in January, 1882,...