Hillman v. Second Bank-State St. Trust Co.

• Decision Date: 31 October 1958
• Docket Number: BANK-STATE
• Citation: 153 N.E.2d 651,338 Mass. 15
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Mary C. HILLMAN v. SECONDSTREET TRUST CO., trustee, and others.

Page 651

153 N.E.2d 651

338 Mass. 15

Mary C. HILLMAN v. SECOND BANK-STATE STREET TRUST CO., trustee, and others.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 22, 1958.

Decided Oct. 31, 1958.

Charles W. Proctor, Worcester, for petitioner.

Richard Wait, Boston, James A. Crotty, Jr., Worcester, for respondents.

Before WILKINS, C. J., and WILLIAMS, COUNIHAN, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

This is a petition for instructions, amended to include a petition for a declaratory decree, brought by Mrs. Hillman against the trustee of an inter vivos trust dated December 11, 1950. By article 2 of this trust indenture the settlor gave in trust to a predecessor of the Second Bank-State Street Trust Company (hereinafter called the trustee) substantial property in trust to 'pay to or apply for the benefit of the' settlor's daughter 'such sums from income as it shall deem for her best interest and any sums not so paid or applied shall be accumulated.' Article 2 of the indenture also (a) stated that '[i]n Making said payments and application the Trustee may apply to * * * [Mrs.] Hillman * * * for advice and shall be protected in acting upon such advice,' and (b) gave power to the trustee 'in its sole and uncontrolled discretion' to expend 'such sums from principal as it shall deem necessary' for the settlor's daughter in 'the event that at any time the income * * * shall be insufficient to provide for * * * [her] comfortable maintenance and support'. (Emphasis supplied).

After the death of the daughter, upon terms and in shares not here relevant, $50,000 of the principal was to be paid to two nephews of the settlor, and $25,000 was to be held in trust for the settlor's sister for life and after her death for her son. All sums not thus disposed of were to go to named educational institutions.

The trustee was relieved by article 5 of the indenture from liability for acts other than wilful 'misfeasance, gross negligence or dishonesty,' and, by article 6, was directed to furnish an account annually to Mrs. Hillman during the lifetime of the settlor's daughter and thereafter to each person entitled to receive income. Article 6 further provided that the 'assent of the person to whom each such account shall so be furnished shall be * * * conclusive as to all transactions therein shown * * * and such assent shall be conclusively presumed * * * unless * * * [such] person * * * shall within thirty days from the receipt thereof notify the Trustee * * * of refusal to assent.'

The settlor's daughter was 'an only child, a hopeless idiot from birth.' At the time of the trial she was about forty-five years old and from 'her birth * * * [had] been boarded out in some private home.' Mrs. Hillman and her husband had been close friends of the settlor, then a widower, beginning in 1942. On various occasions prior to his death in 1952 the settlor had discussed with Mrs. Hillman the problem of the future care of his daughter in the event that anything should happen to him. There can be little doubt on this record that he reposed confidence in Mrs. Hillman as a friend, who was young enough to be likely to survive him. He kept Mrs. Hillman informed of the progress made in arranging the trust indenture and frequently mentioned his desire that Mrs. Hillman visit the daughter 'at least once a year.' During the later years of his life, the settlor saw his daughter only occasionally. Mrs. Hillman never saw her until after the settlor's death.

By his will, allowed December 23, 1952, the settlor made two bequests (one of $10,000 and one of $25,000) to Mrs. Hillman 'in recognition of her kindness to my daughter.' Mrs. Hillman and her husband, early in 1953, filed in the Probate Court a petition for the appointment of a guardian of the settlor's daughter and asked that Mrs. Hillman be appointed. After a hearing, the court, on November 8, 1954, appointed a Mr. Taylor as guardian and the appointment has been in effect ever since.

Mrs. Hillman in February, 1954, went to Florida to visit the place in which the settlor's daughter lived. She went again in 1955. Her bill for expenses on the 1954 trip was paid by the trustee. No later bill, if any was presented, was paid. After the guardian was appointed in late 1954, the trustee took the position that the trustee should not pay Mrs. Hillman's expenses for visits to the settlor's daughter.

Mrs. Hillman brought the present petition, which, as amended, alleged in general terms the existence of a controversy between her, on the one hand, and the trustee and the guardian on the other hand 'in regard to the matter in which' interpretation was sought. It also asked for an interpretation of the trust indenture with respect to her right (a) to make visits to the settlor's daughter; (b) to be reimbursed from the trust fund for the expenses of such trips; (c) to be reimbursed for the expenses of securing advice from investment counsel with respect to the trust investments; and (d) to investigate the trust records of securities. She also sought declarations whether article 6 is a 'valid provision' and whether she is limited to a period of thirty days in which to approve accounts. The petition, with respect to the investment management of the trust, alleged (apart from allegations about the language of the indenture) merely that the amount of the trust corpus is about $200,000, that the trustee annually submits to her a statement showing the disposition made of the income of the trust during the preceding year, that the trustee 'has not in the past and does not now follow the suggestion contained in * * * the trust instrument' that it may apply to Mrs. Hillman for advice, and that it has at no time consulted her about 'the purchase or sale of securities.'

After hearing the court entered a decree dismissing the petition and filed a report of material facts which recites most of the circumstances already set forth. The court concluded that, by the indenture, 'the trustee was given the widest of discretion,' that it is 'under no obligation to seek any advice from' Mrs. Hillman, that the provision in the trust indenture (permitting the trustee to seek advice) is 'merely permissive and optional,' and that the trustee's obligation with respect to accounts 'is satisfied when it furnishes to' Mrs. Hillman, during the life of the settlor's daughter, a copy of its account. Mrs. Hillman has appealed. The evidence is reported.

1. Mrs. Hillman was clearly not entited to have any declaratory decree defining her rights under article 6 with respect to accounts. She has alleged no facts sufficient to show the existence and nature of any present or immediately anticipated actual controversy with the trustee under article 6, or any refusal by the trustee to perform any duty, or to grant any request made by her, with respect to accounts. G.L. c. 231A, § 1. See School Committee of Cambridge v. Assistant Superintendent of Schools of Cambridge, 320 Mass. 516, 518, 70 N.E.2d 298; Richard Clothing Mfg. Co. v. Gutstein-Tuck, Inc., 328 Mass. 386, 391, 103 N.E.2d 702; Povey v. School Committee of Medford, 333 Mass. 70, 71, 127 N.E.2d 925. See also Young v. Jackson, 321 Mass. 1, 7, 71 N.E.2d 386.

2. There are allegations in the petition which somewhat ambiguously assert a present dispute between Mrs. Hillman and the trustee, with respect to Mrs. Hillman's rights, if any, under article 2, to be consulted about the settlor's daughter and to be reimbursed for her expenses in visiting the daughter. Even...