Gorey v. Guarente

• Decision Date: 12 July 1939
• Citation: 22 N.E.2d 99,303 Mass. 569
• Parties: GOREY et al. v. GUARENTE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 569

22 N.E.2d 99

GOREY et al.

v.GUARENTE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

July 12, 1939.

Proceeding by Andrew J. Gorey and others, trustees under a written declaration of trust of Winifred R. Guarente, against Joseph W. Guarente and others for instructions. From the decree Joseph W. Guarente and others appeal.

Decree modified and as modified affirmed.Appeal from Probate Court, Suffolk County; Mahoney, Judge.

Wilfred J. Paquet, of Boston, for appellants.

Hugh A. Carney, of Boston, for respondent Eugene Guarente.

COX, Justice.

This is a petition filed in the Probate Court, by the trustees under a written declaration of trust of Winifred R. Guarente, for instructions as to whom and in what proportions they should pay the principal of the trust fund and the income accruing thereon. The respondents are Joseph W. Guarente, who is the surviving husband of the settlor and also the executor and sole devisee and legatee under her will; Eugene B. Guarente, a minor and the son of the settlor by her former husband; and three minor children of the settlor and the said Joseph W. Guarente.

The practice in probate appeals follows equity as far as practicable and applicable. Fenelon v. Fenelon, 244 Mass. 14, 17, 138 N.E. 334;Hopkins v. Hopkins, 287 Mass. 542, 545, 192 N.E. 145, 95 A.L.R. 1286. The record consists of the petition, answers, decree and appeals. The only questions presented are whether, as matter of law, the decree could have been entered on the pleadings, and, if not, what decree should be entered. Dwyer v. Bratkoysky, 170 Mass. 502, 504, 49 N.E. 915;Levinson v. Connors, 269 Mass. 209, 210, 168 N.E. 736;Dondis v. Lash, 283 Mass. 353, 354, 186 N.E. 549;Novick v. Novick, Mass., 11 N.E.2d 481. See Fitzgerald v. Fitzgerald, 244 Mass. 61, 63, 138 N.E. 234. There is, however, a preliminary matter for disposition. At the argument in this court, the respondent Eugene B. Guarente presented for incorporation in the record, certain certified court records, an affidavit of a court record, and signed statements of accounts and drafts. This respondent has argued as to their force and effect. So far as appears, however, from the record, none of those documents was before the probate judge, and this court, upon appeal, is precluded from considering matters that do not appear from the record to have been before the trial court. To hold otherwise would amount to an utter disregard of the fundamental principles underlying the rights of parties upon appeal. Lee v. Kilburn, 3 Gray 594, 597, 598;Ashley v. Root, 4 Allen 504, 505;Fleming v. Clark, 12 Allen 191, 198, 199; Carroll v. Daly, 162 Mass. 427, 428, 38 N.E. 1119;Lakin v. Lawrence, 195 Mass. 27, 28, 80 N.E. 578. See also Spaulding v. Inhabitants of Alford, 1 Pick. 33, 37;Skinner v. Gray, 130 Mass. 5;Kelley v. Kelley, 161 Mass. 111, 114, 36 N.E. 837,25 L.R.A. 806, 42 Am.St.Rep. 389. This practice is adhered to whether the matters sought to be presented and not in the record are in the form of exhibits or of other documents, Goshein v. Chavenson, 261 Mass. 403, 404, 158 N.E. 789;Barnes v. Springfield, 268 Mass. 497, 504, 168 N.E. 78, certiorari denied, 281 U.S. 732, 50 S.Ct. 246, 74 L.Ed. 1148;Abeloff v. Peacard, 272 Mass. 56, 59, 171 N.E. 14;Yoffa v. National Shawmut Bank of Boston, 288 Mass. 422, 426, 193 N.E. 22, or whether they are set forth in briefs, Gaff v. Cornwallis, 219 Mass. 226, 229, 106 N.E. 860;Hickey v. Hickey, 226 Mass. 152, 115 N.E. 243;Hale v. Blanchard, 242 Mass. 262, 264, 265, 136 N.E. 102;Springfield National Bank v. Jeffers, 266 Mass. 248, 251, 165 N.E. 474;Nelson v. Belmont, 274 Mass. 35, 45, 174 N.E. 320;Carilli v. Hersey, Mass., 12 N.E.2d 68. It follows that the documents presented cannot be made a part of this record nor can they be given any consideration in the decision of the real questions before the court.

The allegations of the petition were admitted. It appears that on November 19, 1917, Winifred R. Guarente, who was then Winifred R. Buckley and the wife of Eugene Buckley, Jr., transferred by a written instrument certain bank deposits to Eugene Buckley, Sr., in trust. The second paragraph of said instrument provided that in case of the death of the settlor ‘leaving her said husband Eugene Buckley Jr. surviving,’ the trustee was ‘to pay over to him one half the principal of said trust fund then remaining,’ together with one half of any net income therefrom ‘then remaining,’ to be his absolute property; ‘Or, if the said Eugene Buckley Jr. shall previously decease, on the death of said Winifred to pay over said one half of the principal of said trust fund then remaining, together with one half of any net income therefrom then remaining, to the heirs at law of said Eugene Buckley Jr. to be their absolute property; and on the death of said Winifred whether her said husband, Eugene Buckley Jr. shall survive her or not, to pay over the other one half of the principal of said trust fund then remaining, together with one half of any net income therefrom then remaining, to such person or persons, and for such uses and purposes, as said Winifred may by her last will and testament, or by other written instrument signed in the presence of at least two witnesses, direct or appoint.’ In default of such appointment or writtendirection, the trustee was required to pay over ‘all of said one half of the principal of said trust fund then remaining, and one half the net income therefrom then remaining, to the lawful issue of said Winifred * * * and for want of such lawful issue, to said Winifred's heirs at law by blood.’ The fifth paragraph of the trust instrument provided that ‘Said Eugene Buckley Sr., while trustee hereunder, is hereby authorized and empowered, in his sole discretion, to assign, transfer and convey to said Winifred, the whole or any part of said principal sum held for her benefit.’

The settlor's husband, Eugene Buckley Jr., died on November 20, 1920, leaving as his heirs at law the settlor and the respondent Eugene B. Guarente (then known as Eugene Buckley, 3rd). On February 14, 1921, the settlor married the respondent Joseph W. Guarante, who by legal procedure adopted the respondent Eugene B. Guarente and had his name changed accordingly.

On June 20, 1923, the then trustee, Eugene Buckley, Sr., paid over to the settlor, in accordance with the terms of a written instrument signed by them, a sum variously stated in the record as $50,080.26, $59,082.26, and $59,087. This instrument recited that the trustee, in the exercise of the discretion vested in him by the fifth paragraph of the trust agreement, had paid over to the settlor the sum of $59,087, which, it was agreed, amounted to one half of the principal of the trust fund, and also that all of the accrued net income had been paid over to her. The instrument further recited that ‘* * * in order that there may be no possible doubt as to the understanding of both parties concerning the intended legal effect of this assignment on the trust * * *,’ the settlor and trustee agreed that the one half of the principal thereby assigned to her was the one half of the principal which, by the second paragraph of the trust instrument, was to be paid over upon her death to such person or persons as she should appoint or direct, ‘so that the half of the principal which is not hereby assigned to her but remains in the trust, will all be paid over by the trustee at the death of said Winifred, with any income therefrom then remaining, to the heirs at law of said Eugene Buckley, Jr., and said Winifred will have no right of disposal of or power of appointment over the said remaining half, nor will the disposal thereof be affected by the terms of the latter part of said Second paragraph.’

At the same time that the last described instrument was executed, the settlor, by a sealed instrument, assigned to the respondent Eugene B. Guarente all the income that might thereafter accrue on the ‘balance of said trust fund remaining in the trust,’ and thereafter, until the settlor's death on August 1, 1932, the income was paid to her as guardian of Eugene B. Guarente, and after her death, it was paid to the respondent Joseph W. Guarente, as succeeding guardian. The settlor left a will that was duly probated, by the terms of which she gave to ‘my husband, Joseph William Guarente, all my property of every kind and description, both real and personal, wherever situated.’ The will mentions the settlor's four children, who are respondents.

The decree in the case at bar recites that ‘the entire amount of principal and income is to be held for the benefit of Eugene Buckley Guarente, formerly known as Eugene P. Buckley, Jr.,’ and directs the trustees to pay out of the fund certain sums to the trustees, to the guardians ad litem who were appointed, and to the attorney for the respondent Joseph W. Guarente. The respondent Joseph W. Guarente, and the minor children of the settlor by the marriage to the said Joseph W. Guarente, appealed from that part of the decree that ordered the entire amount of principal and income to be held for the benefit of the respondent Eugene B. Guarente.

The important question is to determine the effect to be given to the instrument executed by the settlor and trustee on June 20, 1923. The intent of the creator of a trust is the controlling consideration in determining what rights were created by the trust instrument, and that intention must be gathered from the language of the instrument itself aided by the surrounding circumstances. The effect is to be given to the intent so ascertained unless some positive rule of law prevents. Dumaine v. Dumaine, Mass., 16 N.E.2d 625, 118 A.L.R. 834, and cases cited. ‘The terms of the declaration of trust could not be varied or affected by statements made by the creator of the trust after it had been executed and carried into effect, and in the absence and without the knowledge or assent of the other parties interested.’...