Davison v. Wyman

• Decision Date: 27 February 1913
• Citation: 214 Mass. 192,100 N.E. 1105
• Parties: DAVISON et al. v. WYMAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 192

100 N.E. 1105

DAVISON et al. v. WYMAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1913

COUNSEL

Philip Nichols, J. Butler Studley, Brandeis, Dunbar & Nutter, and Hudson & Nichols, all of Boston, for plaintiffs.

Charles Almy and Henry M. Spelman, both of Boston, for defendants.

OPINION

SHELDON J.

The bill is not brought against the executors of the will of Mrs Rust or the trustees under the same or against their personal representatives, and the cause of action which it sets out is not one that pertains to the settlement of their accounts as such executors or trustees. It is brought against the representatives of Rust and Wadsworth on the ground that they (Rust and Wadsworth) have as residuary legatees under the will of Mrs. Rust received some $25,000, and that they received this sum really in trust for the use and benefit of the plaintiffs. It is immaterial that these alleged residuary legatees happened also to be the executors and trustees nominated in the will; the suit is against the representative of the alleged residuary legatees, not of the executors. It can make no difference whether the executors have or have not settled their accounts in the probate court, or whether the plaintiffs might have enforced their rights against the executors or trustees by asking for an accounting in that court. It is not the executors or trustees whom they now seek to hold, but the persons who claiming to be the residuary legatees, have received the money to which the plaintiffs claim to be entitled. Accordingly we are of opinion that it does not appear from the averments of the bill that the plaintiffs must seek their remedy in the probate court alone and that the demurrers cannot be sustained upon this ground.

If the testatrix had ordered that this surplus of the residue of her estate should be paid to particular persons named, 'to be disposed of' by them 'at their absolute discretion and according to their own judgment,' this would very likely constitute an absolute bequest to the persons named even though they happened also to be the executors nominated in the will. Wells v. Doane, 3 Gray, 201. But the clause of this will which is now in question is only a part of the disposition made of her estate by the testatrix. By the fifth clause of her will she bequeathed to Rust and Wadsworth (whom she afterwards named as executors) the sum of $10,000 in trust for the benefit of a cousin for life, with remainder over as that cousin should by will direct. By the sixth clause she gave to her 'executors hereinafter named' $40,000 in trust to pay the income to her husband for life, with remainder to her children, or, if there were no such chlldren (as turned out to be the case), then to several named corporations and societies for charitable purposes. By the seventh clause she gave to Rust and Wadsworth all the residue of her estate, 'but in trust nevertheless for the following uses and purposes'--i. e., for the benefit of her children--and for lack of such children to pay different amounts to many different legatees, some of them her relatives and friends, and some of them charitable societies or proprietors of cemeteries. Then follow the words, still as a description of the trust upon which Rust and Wardsworth were to take the fund: 'After the payment of the above legacies, then to pay to the Addison Gilbert Hospital, of Gloucester, Massachusetts, the remaining residue of my estate, but not exceeding fifteen thousand dollars...