Geddes v. Congdon

• Decision Date: 14 January 1928
• Citation: 159 N.E. 915,262 Mass. 294
• Parties: GEDDES v. CONGDON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 294

159 N.E. 915

GEDDES

v.CONGDON et al.

Supreme Judicial Court of Massachusetts, Bristol.

Jan. 14, 1928.

Appeal from Superior Court, Bristol County; Joseph Walsh, Judge.

Suit by George C. Geddes, Sr., against Elizabeth J. Congdon and others. From a decree dismissing the bill, petitioner appeals. Affirmed.

G. H. Potter, of New Bedford, for appellant.

F. W. Campbell, of Boston, for appellees.

BRALEY, J.

[1] The plaintiff, during the life of his first wife, bought two parcels of improved real property, taking title to one parcel in his own name and to the second parcel in the name of himself and of his wife Alice Geddes as tenants in common, who died intestate August 11, 1915. The defendants were the only children of the marriage, and on November 11, 1915, at the plaintiff's request they conveyed to him all their right, title, and interest of their mother. The plaintiff at the time of the conveyance stated that he did not intend to remarry and would make a will so that his children should have all of his property. But on January 16, 1919, in contemplation of a second marriage, he voluntarily, as the trial judge could find on the evidence, conveyed the property to the defendant Elizabeth J. Congdon, his daughter, as trustee, by deeds in the form prescribed by St. 1912, c. 502, §§ 2, 14, 15, which were duly recorded by her in the registry of deeds on January 17, 1919. The plaintiff on June 1, 1920, had a declaration of trust prepared which the grantee was to execute, and it was transmitted and received by her. The testimony of the grantee shows that she in good faith accepted the deed with the understanding between her and her father that the property thus conveyed was not a gift, but was to be held for his benefit, and upon his death she was to divide it equally with her brothers and sisters or their heirs. The grantee however objected to the terms of the declaration because of the provision that ‘in the event of the marriage of the said George C. Geddes and providing that his wife is living with him at the time of his decease, she shall receive one-third part of said premises,’ and correspondence followed between counsel for the grantee and counsel for the plaintiff. It was claimed by the grantee that in the oral discussions with his children preceding the creation of the trust there was no agreement that if the plaintiff married, his wife, if she survived him, should share in the distribution of the estate.

[2] The purposes for which the trust was created although not expressed in the deed to the trustee could be proved by parol. Bailey v. Wood, 211 Mass. 37, 42, 43, and cases cited, 97 N. E. 902, Ann. Cas. 1913A, 950. It is alleged in the ninth paragraph of the bill that the only understanding with reference to the trust is set forth in the declaration of trust. But the trustee refused to execute it and prepared and executed on ...