Harvard Trust Co. v. Frost

• Decision Date: 21 January 1927
• Citation: 258 Mass. 319,154 N.E. 863
• Parties: HARVARD TRUST CO. v. FROST et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

258 Mass. 319

154 N.E. 863

HARVARD TRUST CO.

v.FROST et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 21, 1927.

Appeal from Probate Court, Middlesex County.

Petition for instructions by the Harvard Trust Company, executor of the estate of Walter Ela, deceased, against Archie M. Frost, administrator and trustee, and others. From a final decree for petitioner, respondents appeal. Exceptions to answer dismissed. Final decree affirmed.

G. M. Palmer, of Boston, for appellants.

W. Noyes, of Auburndale, for appellee.

CROSBY, J.

Lucia Ela, now deceased, by deed dated April 25, 1896, constituted her sons, Walter Ela and Richard Ela, trustees for certain purposes which have since been accomplished. By the fourth clause it was provided that, after her death and after the death of Walter leaving no issue, the trustees were ‘to pay over one-half of said fund to such persons and purposes as said Walter by his last will shall have appointed and in default of said appointment to such persons and purposes as said Richard shall by his last will hereafter made appoint. * * *’ By the eighth clause of the deed it was provided that:

‘If said Richard shall die leaving no issue, then * * * to pay over said one-half of said fund to such persons or purposes as said Richard shall by his last will hereafter made, appoint; and in default of said appointment to such persons and purposes as said Walter shall by his last will appoint. * * *’

Richard and Walter both died testate, neither leaving issue.

Richard died May 22, 1923. By his last will he named Walter a cotrustee with John W. Hunter and Thomas W. Hovenden. By item 5 he gave to the trustees all his real and personal estate upon certain trusts, and then provided as follows:

‘Item Six. Having been given power of appointment by deed of Lucia Ela dated April 25, 1896, I appoint said trustees or trustee for the half according to item 8 therein.

‘Item Seven. Having been given power of appointment to the other half by item four of said deed of April 25, 1896, in default of appointment by Walter Ela, I hereby appoint said trustees or trustee for said half.’

Walter Ela died on January 28, 1924. He appointed the Harvard Trust Company and one Nichols executors and trustees of his will, and therein recited:

‘I give them all my property real, personal or mixed for the purposes hereinafter named.’

It is the contention of the petitioner that the respondent, as trustee under the deed of Lucia Ela, holds certain property disposed of by the will of Walter under the above provision, which constituted the exercise of his power of appointment, under the deed of Lucia Ela, over one-half of said trust property, and prays that he be ordered forthwith to convey, transfer and deliver the same to the petitioner as trustee under Walter's will, together with the rents, income and profits accruing thereto. A final decree has been entered in the probate court in accordance with the prayer of the petition, from which the respondent has appealed.

As the income of the entire estate under the wills of both Richard and Walter is given to their brother Alfred during his life, he is not interested in the question now presented, the parties in interest being the equitable remaindermen named in the two wills after the termination of the life interest of Alfred.

The respondent Frost, as administrator de bonis non with the will annexed of Richard's estate, filed an answer admitting the facts above stated, and alleging other facts tending to show that at the time Walter executed his will he did not intend to exercise the power of appointment given to him by the deed of Lucia Ela. The petitioner excepted to the answer as ‘not sufficient in law to constitute any defense to said petition.’ This exception was allowed by the judge of probate, from which allowance the respondent appealed.

A stipulation was filed by the parties in the probate court by which it was agreed among other things that the case was heard ‘without proof of facts upon the question of law raised by the petition, the answer of Richard Ela's estate and the petitioner's exception to that answer.’

[1][2][3] An exception to an answer in equity will not lie under our present equity pleading or practice. Pearson v. Treadwell, 179 Mass. 462, 468, 61 N. E. 44;Costello v. Tasker, 227 Mass. 220, 116 N. E. 573. And the appeal from the interlocutory decree allowing the exceptions to the answer cannot be considered. The practice in probate follows that in equity so far as applicable. Clark v. McNeil, 246 Mass. 250, 254, 140 N. E. 922. The appeal from that interlocutory decree, therefore, is not properly before this court, either under the provisions of G. L. c. 214, § 19, or the provisions of G. L. c. 231, § 96,...