Gifford v. Smiley

• Decision Date: 28 May 1930
• Citation: 271 Mass. 467
• Parties: LOIS GIFFORD v. DAVID SMILEY, trustee, and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

271 Mass. 467

LOIS GIFFORD v. DAVID SMILEY, trustee, and others.

Supreme Judicial Court of Massachusetts, Bristol.

May 28, 1930

October 28, 29 1929.

Present: RUGG, C.

J., PIERCE, WAIT SANDERSON, & FIELD, JJ.

Probate Court Parties, Discontinuance of petition, Appeal. Trust, Petition for distribution, Construction of instrument creating trust. Assignment. At the hearing of a petition in a probate court under G.L.c. 203, Section

25, against a trustee under a will for an order directing him to convert the trust estate into cash and distribute it among persons entitled thereto, a person named in the petition as interested offered to show that one of the beneficiaries of the trust had mortgaged and assigned his interest to such person, that the mortgage had been foreclosed, that such person had purchased at the foreclosure sale, and that the beneficiary had been adjudicated a bankrupt. The evidence was

excluded. The petition was ordered dismissed.

The person offering such evidence did not appeal. The beneficiary appealed from the decree. In this court the appellees contended that the appellant was not a person interested. Held, that

(1) The appellant was a "person interested" in the trust estate and entitled to appeal under G.L.c. 215, Section 9;

(2) There having been no appeal from the ruling excluding the evidence as to the transfer of the appellant's interest, no question as to the effect of such a transfer was before this court.

It was stated that a transfer of the character above described could not be recognized for the purpose of excluding the appellant from participation in the proceeding or of making the transferee a party thereto.

In his brief before this court, the petitioner in the proceeding above described stated that he desired to withdraw the petition, alleging facts, which did not appear in the record, to the effect that all parties except the appellant had parted with their interests; but this court stated that, upon the record, the petitioner could not discontinue as of right and that it could not be said that, as a matter of discretion, he should be allowed to discontinue.

At the hearing of the petition above described, it appeared that the will provided that, after the death of the testator's widow which had occurred, the estate was to be "held in trust . . . until the youngest child [of the testator] then living shall arrive at the age of twenty one years, when the estate shall be divided share and share alike and paid over to such children as have complied with the above conditions to wit, of saving by each male child the sum of $1,000 and by each female child the sum of $500, and such share of any child who has not complied with this condition shall be held in trust until such condition is complied with by him or her, and then paid over." There were two daughters and two sons of the testator who were beneficiaries.

There was testimony that each of the daughters had earned $500 but not that the she had "saved" that sum. The trustee was asked if it was a fact that, when he was "appointed it was agreed by all the parties that $1,000 had been earned and saved by the heirs," and answered, "All but one," a minor daughter. He then was asked if it was his "understanding that that condition has been complied with by" the two sons, and answered, "It was." By order of the judge, a final decree was entered

"that all said children have complied with the conditions imposed by said will precedent to their receiving their share of the trust estate and . . . said real estate has vested," and that the provisions of

G.L.c. 203, Section 25, did not apply. One son appealed. Held, that (1) There was no proof that any one of the children of the testator had complied with the condition precedent to receiving his or her share of the trust estate;

(2) It therefore was not proved that the estate had vested; (3) The portion of the decree quoted above was not justified and was ordered struck out;

(4) The statute did not apply, and the petition rightly was dismissed.

PETITION, filed in the Probate Court for the county of Bristol on May 16, 1928, by one of the ultimate beneficiaries of a trust under the will of James W. Gifford, late of

Attleboro, seeking under G.L.c. 203, Section 25, that, after death of the widow, life beneficiary, the trustee be ordered to convert certain real estate standing in the trustee's name "into cash, at private sale for the sum of $140,000 or more in accordance with the highest offer therefor, and that distribution of the same may be decreed by the court, among such persons as may be proved to be entitled thereto, according to law." The persons named in the petition as parties interested are stated in the opinion.

The petition was heard by Hitch, J., a stenographer having been appointed under the statutory provisions, and by his order the final decree described in the opinion was entered. Charles H. Gifford, one of the ultimate beneficiaries, appealed.

In the petitioner's brief before this court was the following statement: "A dispute exists as to whether the appellant has any present interest in the estate, or whether his mortgagee Alvin N. Cooper is the owner of his share. No party, other than the appellant, now desires the property to be sold under the petition, and the petitioner desires to discontinue her petition. If she has a right to withdraw it there is no question before the court. If the appellant has no present title, and the petition cannot be withdrawn, the question presented is moot.' We suggest that a commissioner should be appointed by this court to report the facts, or the cause be remanded for further findings by the Probate Court."

The evidence respecting the interest of Cooper was excluded, as stated in the opinion. The record on appeal did not disclose evidence as to the other statements in the passage above quoted.

In the brief for Cooper was the following statement: "Since the hearing in the Probate Court the petitioner has sold her undivided one quarter interest to the F.W. Woolworth Co. by deed dated January 2, 1929, and recorded in Bristol County North District Registry of Deeds, Book 789, Page 196. That the petitioner's sister, Ethel S. Fritch, owner of an undivided one quarter and James W. Gifford, owner of an undivided one quarter have also sold their interests to the F.W. Woolworth Co. The respondent respectfully submits that as to the petitioner the question sought to be raised is moot and that she now has no further interest in the petition and that no practical purpose would be accomplished by the court deciding the question of whether the trustee has authority to sell." The record disclosed no evidence nor finding to substantiate the statement above quoted.

James J. McCarthy, for the respondent, Charles H. Gifford. A.S. Phillips, for the petitioner and others.

E.S. White & L.I. Phillips, for Alvin N. Cooper.

FIELD, J. G.L.c. 203, Section 25, provides as follows: "If under a written instrument a trust estate is to be distributed in whole or in part, the probate court, upon petition of a person interested, after such notice as it may direct, may order the trustee to convert said estate, both real and personal, or either, into cash and distribute it among such persons as under such instrument are entitled thereto." This is a petition brought in the Probate Court under this statute by Lois Gifford, a person interested in a trust estate created by the will of James W. Gifford, wherein she alleges that the trustee holds under said will certain real estate and prays that he be ordered to convert the trust estate into cash and distribute it among such persons as are entitled thereto.

By the second clause of his will the testator gave to his wife and son the residue of his estate "to have and to hold in trust nevertheless under the following terms and conditions; to wit . . . The trust estate herein bequeathed and devised shall be carefully husbanded and invested and the income thereof shall be, during the life time of my said wife, paid over to and held and used by my said wife Annie E. Gifford for the support of herself and children and their education in such manner as she may deem best. Should her circumstances and that of my children justify it, as much of the principal trust fund as the Probate Court shall duly approve and allow may be used therefore. Said trustees shall pay out of said trust estate to James W. Gifford Jr. Chas. H. Gifford and any other male heir, the sum of One Thousand dollars each, when...