Dove v. Johnson

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: HOLMES, J.
• Citation: Dove v. Johnson, 141 Mass. 287, 5 N.E. 520 (Mass. 1886)
• Decision Date: 01 March 1886
• Parties: DOVE and another v. JOHNSON and others.

141 Mass. 287

5 N.E. 520

DOVE and another v. JOHNSON and others.

Supreme Judicial Court of Massachusetts.

March 1, 1886

Bill in equity by George W.W. Dove and Isabella Dove, both of Andover, in said county, trustees under the will of John Dove, late of said Andover, against Mary A. Johnson and others, to determine the construction to be put upon the language used in the will of said John Dove. John Dove, late of Andover, in the county of Essex, deceased, duly made and executed his last will and testament, and one codicil thereto, in writing. The said will and codicil were duly proved, and allowed by the probate court for said county, and the plaintiffs were duly appointed and qualified as the executors thereof on the eighteenth day of December, 1876. The plaintiffs were duly appointed and qualified by said probate court on the second day of July, 1877, as trustees under the eighth clause of said will of the property therein given in trust for the benefit of the daughters of said testator, and have ever since acted, and are now acting, as such trustees; and in such capacity hold personal property to an amount exceeding $60,000. In and by the said eighth clause, said testator bequeathed one-sixth part of all the residue of his personal estate to his son, George, one of the now plaintiffs, and the remaining five-sixths of such residue, now held by the plaintiffs as trustees as aforesaid he bequeathed in trust to pay the net income arising therefrom to all his daughters in equal shares the issue of any deceased daughter to take the mother's share, and, after the decease of the survivor of his daughters, the trust fund to be distributed to those persons who might then take the same as his heirs. At the time of the death of said testator, and of the probate of his said will and codicil, the said plaintiffs, George and Isabella, and the said defendants Mary, Laura, and Clara, were, together with Helen C. Dove, single woman, of said Andover, all the children and the only heirs at law of said testator, and the only persons who would have been entitled to share in his personal estate as distributees thereof, if he had died intestate. The said Helen C. Dove died unmarried and testate and her last will and testament was duly proved and allowed by the probate court for said county of Essex, and the defendant the said William P. Walley was duly appointed and qualified as executor thereof on the twelfth day of January A.D.1885. By said will, the said Helen C. Dove, after making sundry bequests, gave all the residue of her property to her sister, the said Isabella, one of the now plaintiffs. All the debts of the said Helen C. Dove, and the expenses of administration, and all the legacies given in her said will have been paid. The defendants Marion G. Dove, Edith L. Dove, John Dove, and Percival Dove, children of the said plaintiff George; and Grahame D. Johnson and Reginald M. Johnson, children of the said defendant Mary; and John A. Blanchard, Rosamond D. Blanchard, Harold Blanchard, and Archibald Blanchard, children of the said defendant Laura; and Helen B. Walley, daughter of the said defendant Clara,--are infants within the age of 21 years, and are all the issue in being at the death of the said testator, or born since of the children of the said testator. The questions have arisen, as to the income of the trust fund, whether, on the death of the said Helen C. Dove, it became the duty of the plaintiffs to pay the whole of the net income of the trust fund thereafter accruing to the four surviving daughters, or whether the share thereof, to-wit, one-fifth part, which until then had been paid to the said Helen, shall in future be paid either to the said William P. Walley, as executor of her will, or to the said plaintiff Isabella, as residuary legatee thereunder, or whether the said share of the said Helen shall be divided among the four surviving daughters and the said plaintiff George, and, if so, whether it shall be divided in fifths or sixths, and whether the said plaintiff Isabella is entitled to two-sixths or to one-fifth of said share; and, as to the capital of the trust fund, whether the persons interested are entitled to an immediate distribution of the whole or any part thereof, and, if so, to whom and in what proportions such distribution shall be made. The...