Dexter v. Cotting

• Citation: 149 Mass. 92,21 N.E. 230
• Parties: DEXTER et al. v. COTTING.
• Decision Date: 06 May 1889
• Court: United States State Supreme Judicial Court of Massachusetts

149 Mass. 92

21 N.E. 230

DEXTER et al. v. COTTING.

Supreme Judicial Court of Massachusetts, Suffolk.

May 6, 1889

COUNSEL

S. Bartlett, for plaintiffs.

F.C Welch and G.A. Sawyer, for defendant.

OPINION

MORTON C.J.

The statute provides that a trustee may be exempt from giving sureties on his bond when the testator so orders or requests and "any trustee shall, except as aforesaid, be so exempt when all the persons beneficially interested in the trust, being of full age and legal capacity, request such exemption." Pub.St. c. 141, § 16. This is a re-enactment of the statute of 1873, c. 122, § 1, under which the trustees in this case were appointed. The plaintiffs contend that this statute should be construed as if it read like the provisions upon the kindred subject of the bonds of executors and administrators that a trustee shall be exempt when all persons interested in the trust, who are of full age and legal capacity, request such exemption. See Pub.St. c. 129, § 8; St.1885, c. 274. But we have not found it necessary to decide the question whether the statute would apply to a case where there were living parties interested in the trust, who have a vested interest, and who are not of full age and legal capacity. In the case before us, under the will of the testator, the only parties who have any vested interest in the trust fund are the widow and two children of the testator. His grandchildren have no interest. The will provides that the trust shall terminate 10 years after the death of his widow, when the fund is to be divided between the two children, if living. If both are then dead, leaving no issue surviving, the fund is to be "given to such charitable and educational purposes as the trustees think best, unless either child shall have left a wife or husband. Then I desire the trustees to give to such wife or husband such proportion of the income or original fund as they think would be given by me if I were then alive." The words of the statute, "all the persons beneficially interested in the trust," mean all persons who have a present vested interest, and were not intended to include all persons who may possibly become interested in the future. When the legislature deals with the rights of parties not in being or not ascertained, who may have a contingent interest in a trust, or for instance in the case of a sale of the trust-estate, it uniformly speaks of them as parties who "may become...