Frye v. Loring
| Decision Date | 06 July 1953 |
| Parties | FRYE et al. v. LORING et al. (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thomas L. Gannon, Boston, Frederick T. Doyle, Boston, for petitioners.
Robert G. Dodge, Boston, Theodore Chase and Roy M. Robinson, Boston, for respondents.
Before QUA, C. J., and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ.
The executors of the will of Cabot J. Morse, Junior, late of New Hampshire, appointed by the Probate Court, Suffolk County, appeal from two decrees of the Probate Court, Essex County, each dismissing a petition brought by them. The more important petition is in the estate of Marian Hovey, late of Gloucester, and seeks to enforce alleged rights in a trust under her will and to set aside transfers of property by Cabot J. Morse, Senior, late of Boston, to his wife, Anna Braden Morse. It is to this petition we refer except where otherwise stated. The other petition, in the estate of George O. Hovey, late of Gloucester, is brought 'for the purpose of enabling the petitioners to proceed with' the first petition, and seeks the revocation of two decrees, one in 1922, and one in 1930, allowing accounts of the trustee under his will. The respondents in each case are Caleb Loring, surviving executor of the will of Cabot J. Morse, Senior, Augustus P. Loring, surviving trustee under the wills of Marian Hovey and of Henry S. Hovey, and 'trustee, agent or attorney for Anna Braden Morse'; and Anna Braden Morse. There were no express findings and no detailed rulings, each decree merely reciting that it appeared that the prayers of the petition should not be granted.
The petition alleges that Cabot J. Morse, Junior, 'was and his estate now is the remainderman of a trust under the seventh paragraph of the will of Marian Hovey'; and that the respondent Augustus P. Loring, as surviving trustee under her will, has a claim against the estate of Cabot J. Morse, Senior (hereinafter called Cabot), which he refuses, and is unable, to enforce because he is 'trustee, agent or attorney' for the respondent Anna Braden Morse, and has in his custody and control all the 'direct proceeds' of certain property conveyed to the respondent Morse by Cabot 'in fraud of his creditors.' The petition seeks to set aside transfers of that property to the end that there may be sufficient assets in Cabot's estate to enable the trust under the will of Marian Hovey to recover the amount of its claim.
George O. Hovey died in 1877, and his will was admitted to probate in that year. He was survived by three children, Henry S. Hovey, who died in 1900 without ever having married; Marian Hovey, who died on August 28, 1898, without ever having married, and whose will was admitted to probate on October 3, 1898; and Fanny H. Morse, who died in 1922 leaving as her only issue two sons, Cabot, and J. Torrey Morse. J. Torrey Morse died in 1928 without ever having married. John T. Morse, Junior, trustee under the will of George O. Hovey, was the husband of Fanny and the father of her two sons. He died in 1937. Cabot married Alice Burns in 1899, and Cabot Junior was born of the marriage in 1900. Alice died in 1941, and later that year Cabot married the respondent Anna Braden Morse, who was born in 1894. Cabot died in 1946, leaving as his only issue Cabot Junior, who died in 1948.
Upon the termination of the trust under the will of George O. Hovey in 1922, the entire trust fund was distributed by the trustee, John T. Morse, Junior in equal shares to Cabot and J. Torrey Morse. The petitioners contend that this distribution was improper; that, instead, one sixth of the fund should have gone to the residuary trust under the will of Marian Hovey, of which Cabot at the time was one of three trustees; that Cabot had the duty to collect that one sixth for the Marian Hovey trust; and, hence, that he could rightfully receive it only as 'express trustee.' Shortly before his death Cabot made transfers of substantially all his 'capital' to his wife, in order to reduce income taxes. See Morse v. Commissioner of Corporations & Taxation, 327 Mass. 22, 96 N.E.2d 706. These transfers, the petitioners contend, rendered him insolvent.
The answer of the respondent Augustus P. Loring, trustee, submits his rights to the determination of the court. The answers of the two other respondents (hereinafter called the respondents) raise numerous defences, and deny the invalidity of the distribution.
A fundamental controversy is whether Marian Hovey had a power of appointment under her father's will. In that will a trust was created, mainly for the benefit of his three children for their lives. The provisions underwent some changes by a codicil, one being that the trust should terminate on the death of the survivor of Henry or Fanny. In the codicil it is stated: 'In respect to the principal of the said trust created and provided for in the said eighth article or clause, I authorize each of my said three children who shall die before, or simultaneously with, the termination of said trust, to dispose of, by will or appointment, one sixth part of such principal, unless such deceased child shall leave issue her or his surviving, in which event such issue shall take, by representation, such one sixth.' Later the codicil provides: 'And upon the expiration of the said trust as hereinbefore limited I dispose of all of the principal of the said trust, together with any unapplied income, in the manner provided for in the said twelfth article or clause, namely, to my heirs at law, then surviving, as provided in said twelfth article or clause.' The respondents argue that these two provisions are inconsistent, and that the distribution made by the trustee in 1922 was in accordance with the latter provision. The petitioners, on the other hand, contend that the latter provision merely refers to unappointed principal, and rely upon other provisions of the twelfth paragraph. As will appear, we find it unnecessary to decide the matter.
Marian Hovey, in the belief that she had the power of appointment, in her will provided: 'All the residue of the property real, personal and mixed, of which I may be possessed at my death, or over which I may have any power of appointment, and especially the property of which I have power to dispose by the will of my late father, George O. Hovey, I give to the aforesaid trustees upon the following trusts: * * *.' She then directed that the income be paid to her brother and sister, and after their deaths to her nephews, Cabot and Torrey, with a testamentary power of appointment in each nephew to his 'wife and issue.' Upon the death of the last survivor of her brother, sister, and nephews, the fund was to go to the appointees, and if there should be no living appointees, to three charitable corporations. In Massachusetts Institute of Technology v. Loring, 327 Mass. 553, 99 N.E.2d 854, it was held that these corporations have no interest in the trust fund.
After Torrey's death without issue, Cabot was entitled to the entire income and held the power to appoint by will to his 'wife and issue.' With respect to the power of appointment, Marian Hovey's will contains the following limitation: 'provided, that if his wife was living at my death he shall appoint to her no larger interest in the property possessed by me than a right to the income during her life, and if she was living at the death of my father, he shall appoint to her no larger interest in the property over which I have a power of disposition under the will of my father than a right to the income during her life.' The wife, Anna Braden Morse, was living at Marian Hovey's death, but not at George O. Hovey's death. Accordingly, as to any property subject to her power of disposition under the will of the father, Cabot's power to appoint to his wife was not limited, but as to property of Marian Hovey, he could give his wife no more than a life interest.
The will of Cabot is very brief. The preamble declares 'this to be my last will of all property of which I may die seized or possessed, or over which I may have any power of testamentary disposition at the time of my...
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