Heard v. Read

• Decision Date: 02 October 1897
• Citation: 169 Mass. 216,47 N.E. 778
• Parties: HEARD et al. v. READ et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

169 Mass. 216

47 N.E. 778

HEARD et al. v. READ et al.

Supreme Judicial Court of Massachusetts, Suffolk.

October 2, 1897

The will is as follows: "Be it remembered that I, John W. Trull, of the city of Boston, gentleman, do make my last will, revoking all former wills, in manner following I give to my daughter, Mrs. Elizabeth Eldredge, all my household furniture and utensils, silver plate, pianoforte books, pictures, family stores, wearing apparel, horses carriages, and equipments. I also give and devise to her the use and improvement during her life of the dwelling house in Beacon street, in which I now live, and its appurtenances. I give to my stepson, John T. Heard, Esquire, one hundred thousand dollars. I give to John Theodore Heard, son of the said John T. Heard, five thousand dollars. I give, devise and bequeath all the rest, residue, and remainder of my estate and property, of every name and nature, including the reversion of said dwelling house and all estate of which I may die seised or possessed, to my said stepson, John T. Heard, and Edward D. Sohier, Esquire, to hold to them, and the survivor of them, his heirs, executors, administrators, and assigns, forever, but in trust, to and upon the trusts, intents, and purposes hereinafter declared, that is to say: To receive and collect the income and produce thereof, and, after deducting all needful and proper costs, charges, and expenses, to pay the residue of said income, from time to time, into the proper hand, or upon the written order, of my said daughter, Mrs. Elizabeth Eldredge, for her sole and separate use, free from the control or interference of any husband, or liability for his debts or engagements. At and after the decease of my said daughter, I give the said trust premises to her issue, equally to be divided between and among them, if more than one, in fee simple; the children of any deceased child of my said daughter to take the parent's share by representation. If my said daughter shall leave no issue surviving her, the trust premises shall, at her decease, be divided into two equal parts or portions, one of which parts shall go to and be held by the said John T. Heard and his heirs in fee forever, and the other part shall be divided among my heirs at law, as though I died intestate. I give my said trustees, and their successors, and any persons acting as trustees under this will, full power and authority to sell any and all real estate of which the trust premises shall be at any time composed, and to make any and all deeds, and do any and all acts necessary or proper for carrying into full effect any and all such sales, and the purchasers from such trustees shall not be bound to see to the application of the purchase money. And I give my said trustees, and their successors, and any persons acting as trustees under this will, full power and authority to invest, reinvest, and change any and all property of which the trust premises shall be at any time composed, in such manner as they may deem most beneficial for the parties interested in the fund; but I recommend them, whenever a good opportunity offers, to invest the trust moneys in real estate situate in the city of Boston, which I consider the best and safest investment, or in notes secured by mortgages of real estate in said city. I constitute and appoint the said John T. Heard and Edward D. Sohier executors of this my will, and I direct that neither the executors nor the trustees hereinbefore named be required to give bonds for the faithful performance of the trusts herein created. In witness whereof, I, the said John W. Trull, have hereunto set my hand and seal to this my will, written on two pages and part of a third, this eleventh day of November, eighteen hundred and fifty-eight. J.W. Trull. [ Seal.]"

COUNSEL

Geo. F. Richardson, Fred N. Weir, and Geo. A. Sanderson, for Thomas Winship and others.

James M. Codman, Jr., for Ada Parker and Ida Bean.

R.M. Morse and S. Lincoln, for John Read and others.

S. Lincoln, for J.T. Heard.

John Davis, for Larkin T. Trull and others.

OPINION

FIELD C.J.

This is a bill for instructions, brought by the trustees under the will of John W. Trull. The will is dated November 11, 1858. At that time John W. Trull was a widower, between 75 and 76 years of age, having been born May 12, 1783. He died April 12, 1867. He had been married to a Mrs. Heard, a widow, who died before the will was made, and by her he had one child only, a daughter, Elizabeth, who was born August 29, 1816, and had married a Mr. Eldredge, and she is the person designated as Mrs. Elizabeth Eldredge in the will. At the time the will was made, she was in the forty-third year of her age. She died July 4, 1895, never having had issue, and leaving no husband surviving her. In many of the answers of the defendants in this suit, it is averred that she was a widow at the time when the will was made, as well as at the time when John W. Trull died, but at the argument it was conceded that Mr. Eldredge, her husband, was alive at the time when the will was made, and had died before John W. Trull died. Mrs. Eldredge never married again, and she died testate, and the executors of her will have been made parties defendant. John T. Heard, Esq., mentioned in the will, was the only child of Mrs. John W. Trull by her former husband. John T. Heard died December 1, 1880, leaving a wife, Almira P. Heard, and, as his only heir at law, his son, J. Theodore Heard, also mentioned in the will of John W. Trull, and one of the complainants in the present suit. John T. Heard left a will, in which he devised and bequeathed all the residue of his estate to his wife, Almira P. Heard, and appointed her executrix, and she duly qualified as such. She died intestate on April 2, 1885, not having married again, and leaving, as her only heir at law, said J. Theodore Heard. John W. Trull was one of the children of John Trull, and a schedule of the descendants of John Trull is annexed to the bill. Mrs. Elizabeth Eldredge having died leaving no issue surviving her, the principal questions in the case are whether one-half of the trust property which the testator directed should, at her decease leaving no issue surviving her, be "divided among my heirs at law, as though I died intestate," belongs wholly to the estate of Mrs. Elizabeth Eldredge, or is to be divided among the descendants of John Trull, who would be the heirs of John W. Trull if Mrs. Eldredge is excluded, and, if it is to be divided among such heirs, whether they are to be determined as of the time of the death of John W. Trull or of Mrs. Eldredge. It is not seriously disputed that the other one-half of the trust property which, in the event that has happened, was to "go to and be held by the said John T. Heard and his heirs in fee, forever," belongs to J. Theodore Heard. So far as this one-half is concerned, it is not absolutely necessary to determine whether it must be regarded as vesting in John T. Heard and his heirs on the death of John W. Trull, or as contingent until the death of Mrs. Eldredge without issue surviving her. We think, however, that the interest of John T. Heard and his heirs in the estate of John W. Trull was, in a sense, contingent until the death of Mrs. Eldredge without issue surviving her, because, until her death it could not be certainly known whether she would leave issue surviving her; still, this interest would be alienable, descendible, and devisable, subject to such contingency, and it would pass, subject to the contingency, as a part of the estate of John T. Heard by his will. That will is not set out in the papers before us, but the statement in the bill of complaint, that by his will he devised all the residue of his estate to his wife, is to be taken as true, under the admissions contained in the answers of those respondents who have answered, and under the decrees taking the bill for confessed as against those respondents who have not answered. It is nowhere suggested that John T. Heard in his will gave this contingent interest in the estate of John W. Trull to any other person than his wife, or that she, after his death, assigned it to any person. It may be assumed, in the absence of any suggestion to the contrary, that on her death, which was before that of Mrs. Eldredge, it passed to her son, J. Theodore Heard, as her sole heir at law. A distinction should be made between real and personal estate. Strictly speaking, the personal estate, or that which should be regarded as the personal estate of this one-half of the trust fund, should be paid to the administrator with the will annexed of the estate of said John T. Heard, who, after paying the debts of the estate, if there are any, and the expenses of administration, should pay it to the administrator of the estate of Almira P. Heard, who, after paying the debts of this estate, if there are any, and the expenses of administration, should pay it to J. Theodore Heard. The administrator of neither of these estates has been made a party to the bill, and we do not know that there are...