Dexter v. Attorney Gen

• Decision Date: 20 May 1916
• Citation: 224 Mass. 215,112 N.E. 946
• Parties: DEXTER v. ATTORNEY GENERAL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 215

112 N.E. 946

DEXTER

v.ATTORNEY GENERAL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1916.

Case Reserved from Supreme Judicial Court, Suffolk County.

Suit for construction of a will by Philip Dexter, trustee, against Henry C. Attwill, as Attorney General, and others. Decree ordered in accordance with opinion.

Malcolm Donald and Stafford F. Johnson, both of Boston (Fish, Richardson, Herrick & Neave, of Boston, of counsel), for Gwladys C. Hopkins, adm'x with the will annexed of Mark Hopkins, Jr., et al. Currier, Young & Pillsbury, of Boston, for Frederic B. Greenhalge, guardian ad litem for unborn issue of Georgiana Musgrave. Arthur H. Brooks, of Boston, guardian ad litem for Mark Hopkins et al. Robert Homans, of Boston, for Royall Parsons et al. Benj. Loring Young, of Boston, for executors of will of A. J. Parsons. A. G. Grant, of Boston, for executors of will of Georgiana Parsons. Henry C. Attwill, Atty. Gen., and Wm. Harold Hitchcock, Asst. Atty. Gen., for the Attorney General.

BRALEY, J.

The testatrix after devising her real property either in fee or upon certain trusts and making gifts of pecuniary legacies under the sixth clause, where she states that the will is to operate not only on the ‘remainder of my property and estate of every description,’ but ‘including all which I may be in any manner entitled to dispose of, or may be authorized to exercise any power of appointment over by virtue of any will, deed of trust, settlement of an annuity, or other instrument me enabling or however otherwise,’ declared in the sixteenth clause:

‘All the rest, residue and remainder of my estate including all over which I have any right of disposal as above I dispose of as follows. The trustees under my will are to divide and pay over the whole net income thereof equally between my mother, my sister Georgiana, and my brother Jeffrey and the survivors and the last survivor of them for and during their natural lives, such payment to be made them annually at such time as may be most convenient. And upon the death of the last survivor, the said income is to be added to the principal to be allowed to accumulate, and the whole trust fund then to be paid over in proportionate shares to my grandnephews and grandnieces, if any, who may then be living, as they shall arrive respectively at the age of twenty-one years; and if none living to take the same, then to pay over and distribute the whole rest, residue and remander of my whole estate to and among such charitable institutions in New England as they, the trustees, may select & judge to be most beneficial and useful, especially preferring, but therein, however, acting at their own discretion, such as are for the benefit of children.’

The codicils changing the legacies and certain devises of real estate do not affect these provisions. The last life tenant having deceased, at whose death a grand-niece and grand-nephew of the testatrix were living, the question is, whether they are entitled to share in the trust fund, or whether the gift is limited to the children of the two nephews and one niece who were living when the testatrix died, or whether the appointment by the testatrix under the power...