Hochberg v. Proctor
| Decision Date | 08 January 2004 |
| Citation | 441 Mass. 403,805 NE 2d 979 |
| Parties | ALVIN S. HOCHBERG & another, trustees, v. MATTINA PROCTOR & others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: MARSHALL, C.J., GREANEY, SPINA, COWIN, SOSMAN, & CORDY, JJ.
Robert J. Rutecki (Wendie E. Murstein with him) for Mattina Proctor.
Joseph L. Kociubes for Nicholas Emerson King & another.
John P. Fulginiti (Ann Wagner with him) for Emery van Daell Rice & others.
Raymond H. Young, for the plaintiffs, was present but did not argue.
James R. DeGiacomo, for Eden N. Ayer, was present but did not argue.
This is a complaint for instructions by the trustees under the will of Thomas E. Proctor, Jr. (Thomas, Jr.), as to the distribution of the principal of three trusts created by the will. A judge in the Probate and Family Court appointed guardians ad litem to represent minors and unascertained and unborn issue, and, following argument, entered an amended judgment directing distribution of two of the trusts and reforming the third, in a manner that will be discussed later in this opinion. Respondents Mattina Proctor (Mattina) and James Proctor Morss and Nicholas Emerson Proctor King, by their guardian ad litem, appealed. We granted their application for direct appellate review.4 For reasons that follow, we now vacate portions of the amended judgment and direct that the principal of the trusts created by the THIRD and FIFTH paragraphs of the will be added to the residuary trust created by the FIFTEENTH paragraph, to be distributed, as directed in the amended judgment, on the expiration of Mattina's life estate, to Thomas, Jr.'s, heirs at law. The amended judgment as so modified is to be effective as of May 31, 1999.
The case was submitted on a statement of agreed facts and legal issues, which may be summarized as follows. Thomas E. Proctor, Sr. (Thomas, Sr.), died on December 7, 1894, leaving in his will a power of appointment over specified property to his son (Thomas, Jr.). Thomas, Jr., died on March 21, 1949, unmarried and without issue. In his will, dated August 19, 1936 ( two codicils in 1937 and 1947), Thomas, Jr., distributed his own property and exercised the power of appointment granted to him under the will of his father. The three trusts here at issue, the trusts under paragraphs THIRD, FIFTH, and FIFTEENTH, are the only trusts presently in existence under the will of Thomas, Jr. All three are funded solely with property appointed by Thomas, Jr., by exercise of the power of appointment granted to him under his father's will. Paragraph FIFTEENTH is the residuary clause of the will.5
Mattina was the life income beneficiary of the trusts created by paragraphs THIRD6 and FIFTH7 of the will, as of May 31, 1999. On that date, those trusts terminated by operation of the following language contained in paragraph ELEVENTH of the will:
"If any of the foregoing trusts shall not have theretofore terminated under the provisions of this my will applicable thereto, then such trust shall terminate at the expiration of twenty-one (21) years from the date of the decease of the last survivor of the descendants of my father and mother [Thomas, Sr., and Emma H. Proctor] who were living at the date of the decease of my father [December 7, 1894]."8
Because the last survivor of the descendants of Thomas, Sr., and Emma H. Proctor living at the date of Thomas, Sr.'s, death, was Thomas E.P. Rice, who died May 31, 1978, the termination date specified under paragraph ELEVENTH for the trusts under paragraphs THIRD and FIFTH is May 31, 1999, exactly twenty-one years after the death of Thomas E.P. Rice. Paragraph ELEVENTH specifies that, on such termination, the trust property under the THIRD and FIFTH paragraphs shall be paid "to and among those persons who would have been entitled to take the same if such trust had terminated at such date and pursuant to its terms upon the decease of a specified life beneficiary."
The provision for distribution of the remainder of the paragraph THIRD and FIFTH trusts on their termination is "in equal shares to and among the then living male descendants of [Thomas, Sr.], bearing the name of Proctor." As of May 31, 1999, there were no male descendants of Thomas, Sr., bearing the last name of Proctor. There was one living female descendant (Mattina) bearing the last name of Proctor. There were three living male descendants and six living female descendants bearing the middle name of Proctor.
Paragraph FIFTEENTH established a trust for Thomas, Jr.'s, nephew, John Riker Proctor (John) for life and, after his death, in equal shares to John's two children, James Howe Proctor, Second (James 2d), and Mattina, and all to the survivor for life. If either James 2d or Mattina were deceased, their respective shares of the life estate were to go to their issue, if any. On the death of the last survivor of Thomas, Jr.; John; James 2d; and Mattina, the trust provided that the principal be distributed equally to the then living issue of James 2d and Mattina. John having died in 1969, and James 2d in 1942 (with no issue), the income of the paragraph FIFTEENTH trust currently is distributable to Mattina for her lifetime. Mattina is seventy-four years of age and has no issue. Following her death, in default of any of her issue, the provision for distribution of the remainder of the paragraph FIFTEENTH trust (as under the paragraph THIRD and FIFTH trusts) is "in equal shares to and among the then living male descendants of [Thomas, Sr.], bearing the name of Proctor."
The judge determined, with respect to the paragraph THIRD and FIFTH trusts, that, because there were no male descendants of Thomas, Sr., bearing the last name of Proctor as of the trusts' termination date of May 31, 1999, the remainder interests in the trusts' property lapsed. Accordingly, she ordered the property to be distributed to the heirs of Thomas, Jr., as of May 31, 1999.9 With respect to the paragraph FIFTEENTH trust, the judge determined that, when Thomas, Jr., died in 1949, Mattina had only a contingent interest in the trust property that was not certain to vest within the perpetuities period. The judge concluded, therefore, that Mattina's life estate in the paragraph FIFTEENTH trust was invalid under the rule against perpetuities.10 Pursuant to her authority under G. L. c. 184A, § 6 (b),11 the judge ordered reformation of that trust to comport with Thomas, Jr.'s, intended distribution. Accordingly, she ordered that Mattina's life estate be continued in effect until her death, and, on her death, the remainder interest to be distributed outright to the heirs of Thomas, Jr., as of May 31, 1999.
Three sets of claimants have filed briefs in this appeal. They may be identified, and their respective contentions summarized, as follows:
(1) Mattina is the grandniece of Thomas, Jr., and, as stated above, the only living descendant of Thomas, Sr. (she is his great-granddaughter), who bears the last name of Proctor. She contends that, in the absence of any male descendants bearing that last name, it is she who is entitled to the property in the paragraph THIRD and FIFTH trusts, outright and free of trust. Alternatively, she suggests that, if Thomas, Jr., intended distribution only to males "bearing the name of Proctor," the above trusts fail for lack of a specified beneficiary, and the trusts' property, under the doctrine of capture, passes into the residue of his estate, contained in the paragraph FIFTEENTH trust. Her life estate in the latter, Mattina argues, was vested at the time of Thomas, Jr.'s, death, and thus, contrary to the judge's conclusion, does not invoke the rule against perpetuities at all. According to Mattina, her life estate in the paragraph FIFTEENTH trust is valid and, as of May 31, 1999, that trust should include all property from the paragraph THIRD and FIFTH trusts;
(2) James Proctor Morss and Nicholas Emerson Proctor King are two of three living males with the middle name Proctor. They present arguments (through their guardian ad litem) that Thomas, Jr., intended the designation "bearing the name of Proctor" to include male descendants of Thomas, Sr., with the middle name of Proctor. Further, they argue that the perpetuities savings clause in paragraph ELEVENTH should be construed to apply to the appointed property contained in the paragraph FIFTEENTH trust. They urge this court to resolve this case by ordering that the property in all three trusts (in which they claim a one-third interest) be distributed outright to the three living male descendants of Thomas, Sr., whose middle name is Proctor;
(3) Emery Van Daell Rice; Thomas Emerson Proctor Rice, Jr.; and Jane Patricia Rice (Rices) are among the living heirs of Thomas, Jr., as of May 31, 1999. They assert that the judge properly construed the words "bearing the name of Proctor" to apply only to male descendants and, on appeal, agree that the judge properly reformed the paragraph FIFTEENTH trust "in the manner that most closely approximates the transferor's manifested plan of distribution." G. L. c. 184A, § 6 (b).
From the rather complex fact pattern emerges four distinct legal issues to be resolved before the trustees may be instructed regarding the proper distribution of the principal of the trusts. They are: (1) whether the words "male descendants . . . bearing the name of Proctor" refer solely to males whose surname is Proctor; (2) whether the terms of paragraph ELEVENTH operate to terminate the paragraph FIFTEENTH trust as of May 31, 1999; (3) if not, whether Mattina's life estate in the paragraph FIFTEENTH trust property is valid under the rule against perpetuities or, alternatively, whether that trust should be reformed in order to continue Mattina's life estate; and (4) whether the property in the paragraph THIRD and FIFTH trusts must be distributed outright or whether it may it be added to the residue of Thomas, Jr.'s, estate, contained in...
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