First National Bank of Boston & Others, Executors, v. Ida S. Charlton

• Decision Date: 15 November 1932
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: FIRST NATIONAL BANK OF BOSTON & others, executors, v. IDA S. CHARLTON & others.

281 Mass. 72

FIRST NATIONAL BANK OF BOSTON & others, executors, v. IDA S. CHARLTON & others.

Supreme Judicial Court of Massachusetts, Bristol.

November 15, 1932

May 17, 1932.

Present: RUGG, C.

J., CROSBY, WAIT FIELD, & DONAHUE, JJ.

Devise and Legacy General or specific.

A testator, at a time when he owned over fifty-eight thousand shares of stock of a certain corporation, made a deposit of ten thousand shares thereof and a provision in his will, executed shortly thereafter, with respect thereto, in a way which showed clearly that he knew of and appreciated the difference between a specific and a general legacy. At all times between the date of the will and the day of his death he held many more than twenty thousand shares, and at his death he owned over two hundred twelve thousand shares. By his will he devised three parcels of real estate "and also" twenty thousand shares of stock of that corporation to trustees for the benefit of his wife, children and descendants and stated: "It is my desire that the Trustees shall keep said . . . stock intact unless in their unanimous opinion it seems advisable to invest it in other securities, and it shall not be a reason for said sale and reinvestment that said stock has considerably enhanced in market value." After he made his will and before his death, there were stock dividends declared on the stock and its par value was reduced. Upon an appeal from a decree of a probate court upon a petition by the executor for instructions, it was held, that

(1) The legacy of the twenty thousand shares to the trust was a general legacy;

(2) The trustees were entitled to receive only twenty thousand of the shares;

(3) It was unnecessary to consider the effect of the stock dividend or of the reduction of the par value of the stock in the testator's lifetime.

PETITION, filed in the Probate Court for the county of Bristol on April 21 1931, and afterwards amended, by the executors of the will of Earle P. Charlton, late of Fall River, for instructions as to the eighth clause of the will, (1) as to whether the devisees under said clause were entitled to twenty thousand shares of the stock of F.W. Woolworth Co.; (2) as to whether the devisees under said clause were entitled to fifty thousand shares of the stock of F.W. Woolworth Co.; and (3) as to whether the devisees under said clause were entitled to seventy-five thousand shares of the stock of F.W. Woolworth Co.

In the Probate Court, a guardian ad litem was appointed to represent certain minors and persons unborn or unascertained who might become interested.

The case then was heard by Hitch, J., upon an agreed statement of facts. Material facts are stated in the opinion. By order of the judge a final decree was entered stating that the gift of twenty thousand shares of the stock of F.W. Woolworth Co. in said eighth clause of the will was a specific legacy; and that therefore the trustees were entitled to the fifty thousand shares into which their twenty thousand shares were changed by the reduction of the par value of the stock from $25 per share, as it was when the will was made, to $10 per share in the lifetime of the testator and the issuance of fifty thousand shares in place of the twenty thousand named in the will.

Ida S. Charlton and others, and trustees under the tenth clause of the will appealed.

J.E. Carroll, stated the case. F.D. Putnam, (W.C. Jaycox with him,) for Ida S. Charlton and others.

A.W. Milliken, for guardian ad litem, & R. Gray, for The First National Bank of Boston and others, trustees, submitted a brief.

WAIT, J. The executors of the will of Earle P. Charlton filed this petition for instructions whether devisees under the eighth clause of that will are entitled to twenty thousand, thirty thousand or seventy-five thousand shares of the stock of the F.W. Woolworth Co. The petition shows that at the date of the execution of the will, Charlton owned fifty-eight thousand five hundred ninety-two shares in that company, then of a par value of $25. In 1926 the company declared a stock dividend of fifty per cent, by virtue of which he received twenty-nine thousand five hundred shares. In 1929 the company reduced the par value of the stock to $10 per share, and voted to issue to stockholders two and one half shares of the $10 for each share of the $25 par stock. Under this he became entitled to and received two hundred twenty thousand one hundred forty-five shares of $10 par stock. From time to time he purchased and transferred shares of the stock; but at all times between the date of the will and the day of his death he held greatly more than twenty thousand shares. At his death he owned two hundred twelve thousand one hundred thirty-five shares. Shortly before the execution of the will he placed certificates for ten thousand shares with The First National Bank of Boston to be held separate and subject to his order. These ten thousand shares were dealt with in the seventh clause of the will. The executors have been instructed with regard to them in a decision made this day in First National Bank of Boston v. Union Hospital of Fall River, ante, 64.

By the eighth clause of the will, the testator devised three parcels of real...