Gardiner v. Pelton
| Decision Date | 11 July 1927 |
| Citation | 260 Mass. 577,157 N.E. 707 |
| Parties | GARDINER v. PELTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Claim of Appeal from Probate Court, Norfolk County; J. R. McCoole, Judge.
Petition by Robert H. Gardiner, trustee under the will of Florentine W. Pelton, for instructions as to distribution of trust property. From a decree of the probate court construing the will, Paul P. Pelton claimed an appeal. Decree affirmed.
A. F. Bickford, of Boston, for petitioner.
F. C. Gray, of Boston, for respondents Paul P. Pelton and Henry W. Toll.
G. L. Barlow, of Boston, for respondent Gardiner.
A. T. Smith, of Boston, for respondent Elizabeth S. Pelton.
R. C. Curtis, of Boston, for respondent Horace D. Pelton.
By the will of Florentine W. Pelton, which was admitted to probate September 2, 1885, the testator after payment of his debts, made provisions for the maintenance of his wife and for the benefit of his five sons and three daughters, all of whom survived him. To effectuate his purpose the testator created two trust funds, the first consisting of $100,000, and the second consisting of any balance which remained after the first fund had been established and set apart. The widow died December 26, 1918, and the funds have been distributed from time to time to the persons thereto entitled except the shares held in trust for the benefit during their lives of Marion P. Guild and Garnet Isabel Pelton, daughters of the testator. But Garnet Isabel Pelton, who never married, having died testate June 15, 1925, the trustee filed a petition in the court of probate for instructions as to whom and in what proportions her share should be now paid.
When the widow died, the children and the issue of deceased children of the testator then living were Marion P. Guild, Garnet Isabel Pelton, and Paul Philip Pelton, who were over 30 years of age, Horace D. Pelton, son of Franklin F. Pelton, then a minor, and Harold F. Pelton and Elizabeth S. Pelton, children of Harold J. Pelton, each over 21 years of age. It appears from the uncontroverted recitals in the petition that, by reason of the termination of some of the estates created for the benefit of his other children, only five of the testator's children, or those succeeding to their rights, are entitled to participate in Garnet's share of the fund, which would be divided into five parts, subdivided as follows: Franklin Pelton's one-fifth passed to Horace D. Pelton; Florentine A. Pelton's one-fifth passed by his will to his widow, who is now Mabell S. C. Smith; Harold J. Pelton's one-fifth, one-half of which passed to Harold F. Pelton, and from him passed to Mary G. Scott, Elizabeth S. Pelton, and Bronson Scott in equal shares, each receiving one-thirtieth, the remaining one-half passed to Elizabeth S. Pelton, who gets one-tenth of Harold J. Pelton's share and also one-thirtieth of Harold F. Pelton's share. Accordingly Elizabeth S. Pelton would receive four-thirtieths, Mary G. Scott one-thirtieth, and Bronson Scott one-thirtieth, Marion L. Pelton, now Guild, receives one-fifth, and Paul Philip Pelton one-fifth. The court of probate so ordered.
The appellant, Paul Philip Pelton, however, contends that such distribution cannot be made because the testator did not provide for the disposition of Garnet's share after her life estate terminated.
The second paragraph of the will creating the second trust, provides:
‘But in case any child of mine shall die leaving no issue, or if all the issue of any deceased child shall become extinct before the share of such child or issue of deceased child shall become payable, then it is my will that the portion which would have fallen to such child, or issue, if living, shall fall into the principal sum of this trust fund and be divided as herein provided.’
[1][2] The general presumption is that the testator intended to dispose of his entire estate, and not to die intestate as to any part of it. Hedge...
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Robertson v. Robertson
...assumed ‘that the testator intended to dispose of his entire estate and not to die intestate as to any part of it’ (Gardiner v. Pelton, 260 Mass. 577, 582, 157 N.E. 707, 708;Weeks v. Pierce, 279 Mass. 108, 118, 181 N.E. 231), and (b) that ‘no remainder will be construed to be contingent whi......
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Hulsh v. Hulsh
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