Fitts v. Powell

• Citation: 30 N.E.2d 397,307 Mass. 449
• Parties: FITTS et al. v. POWELL et al.
• Decision Date: 29 November 1940
• Court: United States State Supreme Judicial Court of Massachusetts

307 Mass. 449

30 N.E.2d 397

FITTS et al.

v.POWELL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 29, 1940.

Suit in equity by Fenton J. Fitts and others, trustees, against Frank A. Powell and others for instructions as to disposition of share of income of testamentary trust estate. From the decree, the executor of the will of Agenora D. Fairfield appeals.

Reversed, and decree ordered to be entered.Appeal from Probate Court, Suffolk County; Dillon, Judge.

Argued before FIELD, C. J., and DONAHUE, QUA, DOLAN, and COX, JJ.

G. W. Cox, of Boston, stated the case.

W. A. Cross, of Boston, for respondent Powell.

G. L. Wilson and S. S. Dennis, both of Boston, for respondent J. A. Fairfield.

B. H. Dorman, of Cambridge, for respondent R. W. Fairfield.

DOLAN, Justice.

This is a suit in equity in which the petitioners, who are trustees under the will of James M. Fairfield, late of Boston, deceased, seek instructions as to the proper disposition of that share of the income of the trust estate to which Agenora D. Fairfield, now deceased, was entitled during her life under the terms of the will.

The will of the testator is composed of the will itself and five codicils. These instruments were allowed, but were to be executed in accordance with an agreement of compromise the terms of which, so far as appear, do not affect the question now presented for determination.

The sixth, seventh and eighth clauses of the will read as follows: ‘Sixth. After the payment of the beforementioned debts and legacies, I give the net income of my estate to be divided equally, one-seventh part to each, between Agenora De Fairfield, Samuel M. Fairfield, William Fairfield, Anna Maria Fairfield, (and if she shall have any child or children, the one-seventh part of said net income shall be equally divided between her and her child or children, share and share alike) Helen Florence Fairfield, James Albert Fairfield and Dorothy Wiggin (who now lives with me and for whom I have been appointed guardian, who is commonly called Dorothy Fairfield). And the one-seventh part of said net income is given to said Dorothy, upon the express condition that said executors and trustees shall have the custody and control of said Dorothy, free from the interference and control of her father or mother, and that said executors and trustees shall expend said one-seventh part of said net income for the care, support and education of said Dorothy. And I direct said executors and trustees not to use said net income, or any part thereof, for the benefit of said Dorothy, if she shall be taken away from their care and control. Whenever any of the persons named in this clause of my will shall die, leaving a child or children, I give the net income due and coming to such deceased person, to such child or children, and I direct said executors and trustees to pay the same to such child or children until such time as said estate shall be conveyed as provided in the eighth clause of this will. Seventh. After the death of said Samuel M. Fairfield, if his wife shall survivie him, I direct said executors and trustees to pay to her the sum of three hundred dollars a year, payable monthly, during her life. Eighth. After the death of Agenora De Fairfield, Samuel M. Fairfield, William Fairfield, Anna Maria Fairfield, Helen Florence Fairfield, James Albert Fairfield, and Dorthy Wiggin, otherwise called Dorothy Fairfield, my said estate is to be conveyed by my said trustees to the children of the persons named in this clause of my will, each child to receive an equal share. And I hereby give my said trustees full power and authority to make such conveyance.’

By the first codicil, the testator's son William having deceased, the testator revoked the sixth clause of his will and substituted in place thereof a new sixth clause. The only changes of importance made in the new sixth clause were that the testator struck from the list of persons named to have the income in the original sixth clause of the will the name of his son William, who had deceased, and provided that the income payable to James should be held in trust, with discretion in the trustees to pay it to, or withhold it from, him and, in certain circumstances, to divide it equally between the remaining named persons.

By the second codicil the testator revoked the gift of one-sixth of the income from the trust to his son James and instead gave him ‘Five Dollars, in full for all I give him of my estate,’ and eliminated from the provisions of the first codicil the name of his son Samuel, who had died.

By the fourth codicil the testator revoked the provision in the second codicil of his will whereby he gave James $5 and instead gave to him $10,000 ‘in full for all * * * [he gave] him as his share’ of the testator's estate. The second and third clauses of this codicil are as follows: ‘Second. Anna Maria Fairfield named in my said last will and so named in the first codicil to said will, and named Anna Maria Fitzpatrick, being the same person, having died since the making of said last will and codicils, leaving two children, namely, Roscoe William Fitts Fairfield and Fernald Churchill Fitts Fairfield, and I having adopted said children, I now provide as follows: Third. After the payment of my just debts and legacies, I give the net income of my estate to be equally divided, one-fifth part to each, between Agenora De Fairfield, Helen Florece Fairfield, Dorothy Fairfield, Roscoe William Fitts Fairfield, and Fernald Churchill Fitts Fairfield. All parts and provisions of said will and codicils inconsistent herewith are hereby revoked; all other parts are hereby ratified and confirmed.’

Agenora D. Fairfield died testate on or about March 27, 1938. Her will was allowed in the ‘Superior Court of the State of California in and for the County of Los Angeles.’ She left no issue. The judge entered a decree wherein he found that the share of the income to which Agenora was entitled until her death should thereafter be paid to the heirs at law of the testator, and directed that it be paid to the following named persons in the proportions specified. ‘(1) One-sixth of that share to Helen Fairfield Luening of Rutherford, New Jersey; (2) One-sixth of that share to Dorothy Fairfield Miller of Dunedin, Florida; (3) One-sixth of that share to Roscoe William Fitts Fairfield of Syracuse, New York; (4) One-sixth of that share to Fernald Churchill Fitts Fairfield of Westerly, Rhode Island; (5) One-sixth of that share to James Albert Fairfield of Englewood, New Jersey; (6) One-twelfth of that share to Grace E. Demaries of Lowell, Massachusets, a child of Etta J. Irwin, deceased; and (7) One-twelfth of that share to Raymond Irwin of Lowell, Massachusetts, a child of Etta J. Irwin, deceased.’

The only respondent who appealed from this decree is the executor of the will of Agenora. He contends that the share of income to which she was entitled during her life is payable to her personal representative until the termination of the trust. The respondent Roscoe W. F. Fairfield argues that this share of the income is payable to the four surviving named persons in equal shares. The respondent James A. Fairfield contends that it must be treated as intestate property.

The contention of the executor of the will of Agenora cannot be sustained. The explicit declaration of the testator that whenever any of the persons named should die leaving a child or children the net income ‘due and coming’ to such deceased person should be paid to such child or children until the termination of the trust, manifests an intention on his part not to give anything to those claiming under any of the persons named except as expressly provided. Dove v. Johnson, 141 Mass. 287, 5 N.E. 520;Meserve v. Haak, 191 Mass. 220, 222, 77 N.E. 377;Pratt v. Condon, 239 Mass. 167, 172, 131 N.E. 304. This construction is not forbidden although the vesting of title to the income is not in terms limited to the lives of the persons named....