Dary v. Grau
| Decision Date | 28 February 1906 |
| Parties | DARY SAME v. GRAU et al. SAME v. DILLON et al. SAME v. STEDMAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Hallowell & Hammond, for Miriam S. Smith.
Charles E. Grinnell, for Susan L. Stedman.
Howard K. Brown, for Annie S. Grau and her issue.
Henry G. Vaughan, for Emma Dillon and others.
Ralph W. Foster, for Daniel B. Stedman.
B. S Ladd, for Miriam P. Adams.
These and three appeals from a decree of the probate court on a petition brought by the present trustee under the will of Miriam W. Stedman, asking for instructions as to the final distribution of the trust estate. Miriam W. Stedman, by her last will and testament, after giving three legacies, which appear to have been small in value, bequeathed and devised all her personal and real estate to her husband for life, and subject thereto she directed it to be divided into nine equal parts. Two parts she gave absolutely and in fee to her two sons, Daniel B. and George; and she gave another ninth to four grandchildren by the name of Atkins, being children of the same father, who had successively married two daughters of the testatrix, and who had had by his first wife one child and by his second wife three children, both wives being then dead. The remaining six parts were given to her husband and her two sons, Daniel B. and George, 'in trust * * * to pay over and distribute the net proceeds of such rents income, dividends, and interest to and among my children hereinafter named, to wit, Josiah Stedman, Jr., Miriam W. Priest, Hannah M. Jackson, Lucy Stedman, Henrietta Stedman, and Clarissa S. Bates in equal shares or portions; * * * in trust, further, upon the decease of my said son Josiah Stedman, Jr., and of my said daughters, as the same shall happen in the order of Providence, leaving issue, then to grant, surrender, and convey to such issue, their heirs and assigns, forever, the said share or sixth part of which the parent received the income as aforesaid to be equally divided among such issue, share and share alike, but in the event of the decease of my said son Josiah Stedman, Jr., or either of my aforesaid daughters, without leaving issue, then the share of said trust property, with all accumulation thereon, so devised for the use of such son or daughter so dying without issue, shall be held by my trustees aforesaid for the use of my surviving sons or daughters to be equally divided between them and the shares devised in trust are to be held upon the like trusts and purposes herein already before declared, and finally to be conveyed, divided, and distributed among their issue as herein before provided.' The testatrix died in 1862, and her husband in 1867. The plaintiff became sole trustee of the trust property in September, 1876. Clarissa was the survivor of the six life tenants, and died in May, 1904, without leaving issue. On her death the petition in question was brought for instructions as to the final distribution of the trust estate.
By a decree of the probate court dated June 15, 1905, it is declared that 'Daniel B. Stedman, the elder, Miriam W. Priest, Henrietta S. Alleyne, and Hannah M. Jackson, all deceased, were the only children of the testatrix who survived her and left issue surviving the said Clarissa S. Stedman.' After further findings, the decree directs the estate to be divided into four equal parts--one part for the issue of Daniel B., who left five sons and two children of a deceased son; one part for the issue of Miriam W. Priest, to be divided into three parts, one for each of her two sons, and one for the daughter of a deceased daughter; a third part for the issue of Henrietta S. Alleyne, namely, her daughter Arabella Von Schrader; and the fourth part into two equal parts for the two daughters of Hannah M. Jackson. The decree then directs that the estate shall be distributed and conveyed accordingly, except that the shares of Daniel B., the younger, and Josiah, two sons of Daniel B., the elder (son of the testatrix), both of whom become bankrupt in 1877, were to be conveyed to an assignee in bankruptcy; and the share of George Stedman, another son of Daniel B., the elder, who became insolvent in 1896, was to be paid to his assignee in insolvency. From this decree there were three appeals. One was taken by Annie S. Grau and others, claiming under the will of George Stedman (son of the testatrix), who died testate without leaving issue. These appellants are entitled under his will, if this property passed under it. Another appeal was taken by Emma Dillon and others, the issue of the two daughters who married Mr. Atkins, and who claim that the trust estate should be divided among all the issue of the testatrix, and not among the issue of the eight children to whom the share of the life tenants dying without issue was given, provided they survived the life tenant so dying. The third appeal was taken by a guardian ad litem in behalf of great grandchildren and minors and unascertained issue, who claim that the distribution should be per capita. It appears from the testimonium clause of the will that the words 'to be equally divided between them and the shares devised in trust are to be held' were interlined. And it appears from the agreed facts filed in this court that the latter 's' in the word 'sons' was written when the words interlined were written in. The cases are here on a reservation made by a single justice upon the pleadings and agreed facts.
The contention of the appellants in the first appeal in that unless the gift...
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