George v. Clark

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: HAMMOND, J.
• Citation: George v. Clark, 186 Mass. 426, 71 N.E. 809 (Mass. 1904)
• Decision Date: 14 September 1904
• Parties: GEORGE v. CLARK et al.

186 Mass. 426

71 N.E. 809

GEORGE v. CLARK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 14, 1904

COUNSEL

Louis M. Clark, for appellants.

Wm. Lee George, for appellee.

OPINION

HAMMOND, J.

This is a petition, brought under Rev. Laws, c. 144, for the appointment of a receiver of the property of George S. Smith who, on October 23, 1873--being then, as the petition alleges, 28 years of age--left his home in this state and has never since been heard from, although diligent search has been made to find him. It does not appear that he ever was married. The case is before us upon an appeal from a decree of the probate court appointing a receiver. All of the property named in the petition is the accumulated income of one-fourth of the trust estate mentioned in the sixth and seventh items of the will of George W. Smith, who was the father of the absentee; and the appellants, who are the present trustees, contend that it does not appear that the absentee ever had any interest in this income. When George W Smith made his will, he was uncertain whether his son George who then had been absent more than seven years, was living; yet he contemplated the possibility that the son might be alive and might return to this state, and the will was framed with a view to that contingency. In the second item a bequest was made to the son, conditioned upon his return before the decease of his mother; and the sixth item provided that after the death of the mother the net income of the trust fund created by the will, so long as any one of the four children, including George, should live, should be divided semiannually, or oftener if convenient, 'into as many equal shares as shall be equal to the number of all my said children, excepting such as shall have deceased without issue, or deceased leaving issue which has become extinct at the time of making such division'; and so on to the end of the trust. The seventh item provided that, upon the death of the last survivor of the children, the principal of the trust should be divided equally among the grandchildren then living; any issue then living of a deceased grandchild to take the share which the deceased grandchild, if alive, would have had. It was further provided, however, that if 'at the time of the decease of all my said children, excepting my said son George, neither he nor any child of his shall be known to my said trustees to be living,' then the residue was to be divided among the then living grandchildren, 'excluding my said son George S. Smith, and his children if any.' It will be noted that while the right of George to the bequest in the second item, and to a share in the principal under the seventh item, was conditioned not simply upon his existence, but also, as to the first bequest, upon his returning and demanding the same before the death of his mother, and, as to the second, upon his existence being made known to the trustees, his right to a share in the income under the sixth item depended simply upon his existence when from time to time the income was to be divided. If then alive, he was entitled to it; otherwise not. The father died in January, 1887. His will was duly admitted to probate, and the appellants were appointed executors and trustees. The widow died in April, 1893. Upon her...