Devine v. Deckrow

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: DOLAN
• Citation: Devine v. Deckrow, 299 Mass. 28, 11 N.E.2d 596 (Mass. 1937)
• Decision Date: 08 December 1937
• Parties: DEVINE v. DECKROW et al.

299 Mass. 28

11 N.E.2d 596

DEVINE

v.DECKROW et al.

Supreme Judicial Court of Massachusetts, Dukes County.

Dec. 8, 1937.

Petition for partition by Ruth E. Devine against Anna D. Deckrow and others. From an interlocutory decree entered in the probate court for the County of Dukes County, ordering partition, respondent B. M. C. Durfee Trust Company, trustee, appeals.

Reversed and rendered.Appeal from Probate Court, Dukes County; Davis, Judge.

J. A. Kerns, of Fall River, for Ruth E. Devine and Ann D. Deckrow.

W. E. Fuller, of Fall River, for B. M. C. Durfee Trust Co., trustee.

F. Kavolsky, of Fall River, for Refina Estes and others.

DOLAN, Justice.

This is an appeal from an interlocutory decree (see Joyce v. Dyer, 189 Mass. 64, 75 N.E. 81,109 Am.St.Rep. 603) of the Probate Court for the county of Dukes County, dated July 9, 1937, ordering the partition and sale of certain real estate situated at Vineyard Highlands, Oak Bluffs, county of Dukes County, among certain persons named in the petition for partition and alleged to have derived their common title as heirs at law of Sarah Etta Chace (hereafter called the testatrix), late of Taunton in the county of Bristol, deceased. The persons therein named as tenants in common and their alleged respective shares are as follows: Anna D. Deckrow, one sixth; Ruth E. Devine, one sixth; Harrison M. Douglas, one third; Florence Borden, one sixth; Refina Estes, one sixth. Anna D. Deckrow, who assented to the petition, is called in the will Annie D. Hutchinson and in the ‘answer’ of the respondent trust company, Anna Deckrow. The petition was heard upon an agreed statement of facts signed by counsel not only for those named in the petition as heirs at law of the testatrix or claiming through them, but also for those representing the trustee named in her will. The real estate which is the subject of the partition proceedings was owned by the testatrix at the time of her death and will be hereafter referred to as the Oak Bluffs real estate.

The will of the testatrix was executed on November 14, 1934. She died January 13, 1935. Her will was duly proved and allowed by the Probate Court for the county of Bristol and letters testamentary issued thereon to the B. M. C. Durfee Trust Company, the executor and trustee therein named, on May 3, 1935. At her death her heirs at law were as follows: ‘1. Fidelia H. Clark, Fall River, sister (since deceased, intestate, October 24, 1935, leaving as her only heirs-at-law, Annie D. Hutchinson, now Deckrow, daughter, and Ruth E. Devine, daughter). 2. Florence E. Borden, Fall River, niece, Rufine [ sic] Estes, Fall River, niece, children of deceased brother. 3. Harrison M. Douglas, Fall River, nephew, son of deceased brother.’

The disposing parts of the will read as follows: ‘First, I give to Frank L. Deckrow of said Taunton my house and land situated on Longmeadow Road, in the said Taunton, and including all buildings on the lot, for and during his life. I direct that the same be sold after his decease and form part of the rest and residue of my estate. Second: I direct my executor to sell all of my personal effects upon the decease of said Frank L. Deckrow, including furniture and furnishings of my house. I give said Frank L. Deckrow the use of all said furniture and furnishings in my said house for his life. Upon his death, after said real estate has been converted into cash, and also said personal effects, I give to my sister Fidelia H. Clark the net income of my said estate during her life. Upon her death, I direct that the same be divided into three parts. I give one-third to her daughter, Annie D. Hutchinson. I direct that one-third be held in trust for the benefit of Wesley Hutchinson, paying him one-half of the net income thereof until he becomes forty years of age at which time the principal of the fund together with the remaining half of the income shall be paid to him discharged of all trust. I direct that one third thereof be held in trust for the benefit of George Hutchinson paying him one half of the net income thereof until he becomes forty years of age at which time the principal of the fund together with the remaining half of the income shall be paid to him discharged of all trust. In case of the death of either said Wesley Hutchinson or his brother George Hutchinson without issue before becoming forty years of age, I give the share here given to said deceased legatee to the survivor of them, discharged of all trust. In case of the death of either or both leaving issue before becoming forty years of age I direct that such issue shall take by right of representation and discharged of all trust.’

Frank L. Deckrow and Fidelia H. Clark, named in the will, survived the testatrix but died prior to the filing of the petition for partition. The respondent trust company was duly appointed trustee under the will of the testatrix by the Probate Court for the county of Bristol on March 26, 1937, under separate appointments for the benefit of Wesley Hutchinson and George Hutchinson respectively...