Harper v. Harper

• Decision Date: 29 May 1952
• Citation: 329 Mass. 85,106 N.E.2d 439
• Parties: HARPER v. HARPER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 439

106 N.E.2d 439

329 Mass. 85

HARPER v. HARPER et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued April 30, 1952.

Decided May 29, 1952.

J. White Fellows, Worcester, for appellee.

H. H. Hartwell, Worcester, J. F. Driscoll, Worcester, for respondent Joseph Harper.

J. Y. Young, Worcester, for respondents, appellants.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

LUMMUS, Justice.

Joseph Harper of Worcester died on August 20, 1946, leaving a widow, Sarah Harper, and seven children, Earl T. Harper, Joseph Harper, Junior, Roscoe J. Harper, Roy L. Harper, Florence H. Tucker, Eva H. Estabrook, and Margaret H. Russell By his will, which was allowed on September 17, 1946, he gave all his property to his wife Sarah and his son Earl T., as trustees, to pay the income to Sarah during her life and at her death to divide the trust fund among the children as provided in the will. Sarah and Earl T. were appointed executors. Substantially the whole estate consisted of 396 shares of the stock of Parker & Harper Manufacturing Company, inventoried at $59,400. The widow, Sarah, contributed to the estate $53,150.49, so that the shares in the corporation were freed from liability for debts and expenses, and were turned over to the trustees, who then held the shares as the entire trust estate at an inventory valuation of $59,400. The trustees had power under the will to change investments and to sell any property of the trust, but that does not prevent a decree for sale. G.L.(Ter.Ed.) c. 203, § 16, as amended.

The will contained a provision that 'The trustees are authorized from time to time to pay portions of the principal for the comfort and support of my wife and they shall upon written request of my wife pay to her such portion of the principal as she may request.' On February 8, 1950, the widow Sarah delivered to her contrustee Earl T. a written request to be paid $53,150.49. On January 12, 1950, Margaret H. Halstead (apparently the same daughter hereinbefore named as Margaret H. Russell) was appointed conservator of the property of Sarah, apparently because of her advanced age, and on October 11, 1950, Sarah, by the conservator, resigned as trustee and her resignation was accepted.

On February 10, 1950, Earl T. Harper as trustee prayed the instructions of the court with respect to compliance with the request of the widow Sarah and the raising of money with which to pay her. By the will, the testator's interest in the corporation was to be divided at the death of his widow among the six children of the testator, excluding Earl T. Harper.

On December 18, 1950, Earl T. Harper as trustee was ordered to pay to the widow Sarah the sum of $53,150.49 and to raise that sum by sale of so much of the corporate stock as might be necessary. No appeal was taken from that decree. On February 15, 1951, Earl T. Harper as trustee represented that he was unable to sell said stock, which was a minority interest, but that he could sell the stock to the corporation on instalments, and prayed authority to do so. On June 12, 1951, a decree of the Probate Court authorized him to sell 25 shares at $150 a share to the corporation, and 5 shares more each month until all 396 shares should have been sold. But on June 4, 1951, Sarah and her conservator Margaret H. Halstead had joined in a withdrawal of the written request of February 8, 1950, for the payment of $53,150.49, and filed a petition for the revocation of the decree of December 18, 1950, ordering payment thereof. But on June 12, 1951, the Probate Court dismissed that petition.

On June 15, 1951, four of the children appealed from the decrees of June 12, 1951.

Upon request for a report of material facts, under G.L. (Ter.Ed.) c. 215, § 11, as amended by St.1947, c. 365, § 3, the judge found material facts, the...