Fiduciary Trust Co. v. Mishou

• Decision Date: 19 September 1947
• Parties: FIDUCIARY TRUST CO. v. MISHOU et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

321 Mass. 615

75 N.E.2d 3

FIDUCIARY TRUST CO.

v.MISHOU et al.

Supreme Judicial Court of Massachusetts, Essex.

Sept. 19, 1947.

Petition by Fiduciary Trust Company, trustee under the will of Martha S. Parker, deceased, against Aimee Henry Mishou and others, for instructions as to the distribution of the principal of a testamentary trust. From a decree favorable to the surviving issue of the decedent's sisters, the other interested parties appeal.

Reversed and remanded with directions.Appeal from Probate Court, Essex County; Phelan, Judge.

Before QUA, C. J., and LUMMUS, RONAN, and SPALDING, JJ.

R. H. Wiswall, of Boston, for petitioner, stated the case.

S. H. Babcock, of Boston (A. P. Lowell and G. M. Taylor, Jr., both of Boston, on the brief) for executors of the will of Mary Martha Taylor.

C. M. Storey, of Boston, and W. B. Trafford, of New York City, for Susan D. Porotto.

V. Taylor, of Boston, administrator with will annexed of James Parker, submitted a brief.

P. J. Woodward, of Boston (A. H. Haussermann, of Boston, on the brief), for the administrator with the will annexed of Richard T. Parker.

D. Schwartz, of the Federal Bar, of Washington, D. C., (C. J. Kalinauskas, of Boston, on the brief), for Atty. Gen. of the U. S.

J. H. Cohen, of New York City (H. P. Goldstein, of New York City, on the brief), for Aimee H. Mishou.

T. A. Henry, of Salem, for Sartiges and others.

H. L. Clark, of Boston (F. C. Underhay, of Boston, on the brief), for Christophersen and others.

QUA, Chief Justice.

This is a petition by the remaining trustee under the will of Martha S. Parker, late of Beverly, for instructions as to the distribution of the principal of a trust created by her will.

The testatrix died March 12, 1878. Her will was dated March 8, 1864. A codicil made in 1872 is not here material. In 1851 Martha S. Parker, the testatrix, married Richard T. Parker and immediately after the marriage, under date of October 2, 1851, she and her husband, as parties of the first part, entered into an indenture with James Parker, the elder of that name, party of the second part, in the nature of a marriage settlement, wherein the husband and wife conveyed to James certain property of the wife, who was then a minor, including all the personal property held by her guardian for her benefit and of which she or her husband was entitled to receive a transfer from her guardian. This conveyance was expressed by the indenture to be in trust to pay the income to the wife to her separate use during the marriage and to pay the entire fund to her if she should survive her husband, but if he should survive her, as actually happened, to dispose of the entire trust fund ‘as she, whether of full age or not, may have directed by any last will and testament in writing by her executed in the presence of three witnesses, or by any instrument of appointment by her so executed in the nature of a last will and testament, and in default of any such will or appointment,’ to pay the income to the husband, Richard T. Parker, during his life and at his death to dispose of the fund as he ‘may have directed by any such last will and testament or instrument of appointment in the nature thereof; and in default of any such will or appointment,’ then to the persons who would be the heirs at law of the wife if she had then died intestate and a widow.

Mrs. Parker by her will of 1864 attempted to dispose of all her property and estate ‘and of all property over which * * * [she had] any power of appointment, and especially’ of all property held in trust for her under the indenture of 1851 ‘over which property and estate by the terms of the said Indenture * * * [she had] a full and absolute power of appointment.’ She gave her husband, Richard T. Parker, a life estate in the family plate belonging to her, with remainders over after his decease. She also bequeathed to him her jewelry, and her articles of personal use and ornament and household furniture. She then bequeathed the residue of her estate, without any express distinction between property owned outright by her and property over which she had a power of appointment under the indenture of 1851, to trustees in trust to pay certain legacies and thereafter to make out of income certain payments for the use, support and education of her living children and when each should arrive at the age of twenty-one to pay him or her ‘yearly and in each year during life that portion of the said net income to which on an equal division of the same among all my children then living and the issue of any deceased child by right of representation, such child would be entitled * * * and from and after the decease of such child to pay the said share or portion [of income] to his or her issue living (if any) until the decease of my last surviving child and the division of the trust estate to be then made as hereinafter provided.’ The will then provided that upon the decease of the last surviving child the trustees should distribute the fund among the issue of the deceased children by right of representation, but that if no issue of any deceased child should be living at the decease of the last surviving child the fund should be distributed among the sisters of the testatrix then living and the issue of any deceased sister by right of representation, and if no sister or issue of a deceased sister should then be living to the testatrix's heirs at law. This is the trust with reference to which the petitioner as sole present trustee now seeks instruction. The testatrix named her husband, Richard T. Parker, as executor of her will. He assented in writing to the will and acted as executor.

Upon her death in 1878, the testatrix, Mrs. Parker, was survived by her husband, Richard T. Parker, and by her three children, James Parker, the younger of that name, Charles T. Parker, and Mary Martha Parker (later Taylor). All three children had been born after the execution of the indenture of 1851. Charles T. Parker died in 1912, leaving no issue. James Parker the younger died in 1930, leaving no issue. Mary Martha Taylor died in 1943, leaving as her only surviving issue two illegitimate daughters, Aimee Henry Mishou and Martha Sakrausky. The testatrix's husband, Richard T. Parker, died in 1904, leaving a will wherein, after exercising in Article Five a power of appointment under his father's will (not here involved), he gave his residuary estate including ‘all property over which I may have any power of appointment other than given me in the will of my father, and exercised in Article Five of this will,’ to his three children James Parker (the younger), Charles T. Parker, and Mary Martha Parker (Taylor) in the proportions respectively of eleven undivided twentieths, three undivided twentieths, and six undivided twentieths. None of the sisters of the testatrix was living at the death of the testatrix's last surviving child (Mrs. Taylor in 1943), but certain of the sisters did leave issue then surviving.

The trust fund now in controversy was received in 1878 by the original trustees from the executor of the will of Mrs. Parker without distinction between property owned outright by Mrs. Parker and property derived by virtue of her exercise of her power of appointment under the indenture of 1851. The fund, during the period of the trust, has been administered ‘as one fund, no division or distinction having been made at any time with regard to the source of said property whether derived from property owned by the said Martha S. Parker in her own right or whether derived from said trust of October 2, 1851.’ At least the greater part of the original fund came from the 1851 trust and not from property owned outside that trust by the testatrix, Mrs. Parker. Some of the parties contend that all of the present fund is proceeds of the 1851 trust.

Facts in addition to those hereinbefore stated will be mentioned hereinafter as occasion requires.

There are three sets of claimants to the principal of the existing fund. They may be identified and the general nature of their claims may be summarized as follows: (1) The respective executors or administrators with the will annexed of the husband and of the three children of Mrs. Parker contend that the period of time within which, under the rule against perpetuities, future interests in property derived from the 1851 trust must vest is to be calculated from the creation of the 1851 trust from which the testatrix's power of appointment sprang and not from the attempted exercise of that power at the death of the testatrix in 1878; that the limitations in her will of principal after the death of the last survivor of her children (none of whom was a life in being in 1851) to the issue of those children and in the event of failure of such issue to the sisters of the testatrix or their issue are too remote; that to that extent there was a failure on Mrs. Parker's part to make a valid appointment under the 1851 indenture; that in default of such valid appointment the power of appointment given by the 1851 indenture to the husband, Richard T. Parker, became operative; that by his will he made a valid appointment under that power to the three children in the proportions hereinbefore mentioned; and therefor that the estates of these children are entitled to share in the principal of the trust fund under Mrs. Parker's will in those proportions in so far as that principal is derived from the 1851 trust fund. (2) Mrs. Mishou, an illegitimate daughter of Mrs. Parker's daughter Mary Martha Taylor, and the Attorney General of the United States as presently entitled to the share of Mrs. Sakrausky, the other illegitimate daughter, an alien enemy, contend that the time when future limitations must vest under the rule against perpetuities is to be calculated from the death of Mrs. Parker, who attempted to exercise her power, and not from the creation of the power in 1851; that the limitations of principal to the issue of Mrs....