Holmes v. Holmes

• Decision Date: 01 March 1907
• Citation: 80 N.E. 614,194 Mass. 552
• Parties: HOLMES et al. v. HOLMES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 552

80 N.E. 614

HOLMES et al. v. HOLMES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1907

COUNSEL

Hamilton & Eaton, for plaintiffs.

Herbert Parker and Frederick H. Nash, for respondents.

OPINION

SHELDON J.

William A. Holmes died August 21, 1897, testate, leaving both real and personal estate. He bequeathed all his property to a trustee to whom he gave full control and power of management with authority to continue a business formerly carried on by the testator. He then directed the trustee 'to pay over to my wife Ellen C. Holmes and to my son William D. Holmes each the sum of fifty dollars ($50) on the last day of each and every month for the period of five years after my decease allowing the remainder of said income, if any, to accumulate and become a part of the principal of my estate. At the discretion of my said trustee said monthly payments may be in creased to either or both my wife or my son. At the expiration of said five years to divide one third of all my estate between my said wife and son in proportions of one third thereof to my wife and two thirds thereof to my son. At the expiration of ten years from my decease to divide one half of my estate then remaining in the hands of my said trustee between my said wife and son in the same proportions. At the expiration of fifteen years to divide all the remainder of my estate between my said wife and son in the same proportions. If either my wife or son should die before the expiration of fifteen years to pay to the survivor the deceased person's share. If both should die before the expiration of said fifteen years to pay over all my estate to the legal heirs of the survivor as soon after his decease as may be found practicable.'

The testator's widow, Ellen C. Holmes, seasonably waived the provisions of this will, and one-third of the personal estate, which did not exceed the sum of $10,000, was paid over to her. She died in March, 1900, testate, leaving William D. Holmes her sole heir at law and sole legatee. The defendant Mellen, in April, 1902, was duly appointed trustee under the will of William A. Holmes, and received the personal property belonging to the trust estate, amounting to something over $3,000. The remainder of the trust fund consisted of six parcels of real estate, the appraised value of which was about $22,000. On the 4th day of August, 1902, being 17 days before the expiration of the first period of five years mentioned in the will of William A. Holmes, the defendant Mellen, as such trustee, at the request of William D. Holmes, delivered to him all of the personal property and conveyed to him all of the real estate in question, without receiving any consideration therefor. William D. Holmes died on May 20, 1903, leaving a widow, the defendant Ever M. Holmes, and no issue, and leaving a will by which he bequeathed all his estate to his widow; and she still holds all of the personal property and the record title to the real estate.

The plaintiffs are all the heirs by blood of William D. Holmes, and they seek by this bill to have the property so conveyed to him by the trustee and now held by the widow impressed with the original trust in their favor, on the ground that they are his only legal heirs to the exclusion of his widow; and they ask that the defendant Mellen be ordered to account to them for the trust estate, and that both defendants be ordered to transfer and convey to them all the property both real and personal, belonging to the trust estate.

The first question arises upon the defendant's contention that this court has no jurisdiction over the subject-matter of the bill. They claim that what the bill seeks is in effect to compel an accounting in this court as a court of equity, and that the original jurisdiction in such a matter is only in the probate court, and that the accounting must be had there. Greene v. Brown, 180 Mass. 308, 62 N.E. 374. It is true, as was stated in that case, that this court has no jurisdiction as a court of equity to compel a probate accounting, and so cannot upon this bill give to the plaintiffs a full and final remedy for the complete enforcement of all the rights to which they may be entitled. Green v. Gaskill, 175 Mass. 265, 269, 56 N.E. 560, and cases there cited. But in this case the trust fund has been diverted from the possession and control of the trustee and has finally passed into the hands of a devisee of one of the cestuis que trust. Adversary claims to beneficial interests under the original limitation are made by the plaintiffs and the defendant Ever M. Holmes. Although the extent and amount of the plaintiff's interest in the fund are disputed, it is not denied that they have a beneficial interest; and they may well come into equity to secure the preservation of the fund, and to have their rights and those of Mrs. Holmes determined, although the final accounting must be had and the net amount of the trust fund determined in the probate court. Brown v. Wright (March 1, 1907) 80 N.E. 612; Wilson v. Boylston National Bank, 170 Mass. 9, 48 N.E. 836; Tyler v. Wheeler, 160 Mass. 206, 210, 35 N.E. 666; Foster v. Bailey, 157 Mass. 160, 31 N.E. 771; Thorndike v. Hinckley, 155 Mass. 263, 29 N.E. 579; Newell v. West, 149 Mass. 520, 21 N.E. 954; Ammidown v. Kinsey, 144 Mass. 587, 12 N.E. 365; Murray v. Wood, 144 Mass. 195, 10 N.E. 822.

The widow of William A. Holmes, having seasonable waived the provisions of her husband's will became entitled at once to receive, as she did receive, one-third part of the personal estate from the executor of his will, and this amount never became part of the trust fund. And whatever property was left by her at her decease passed by her will to her son and sole heir, William D. Holmes. If any of this property remained at his death it has now under will become vested absolutely in the defendant Ever M. Holmes.

William D. Holmes was still living on August 21, 1902, when the period of 5 years after the decease of his father expired. His mother having waived the provisions of the will, it became on that day the duty of the trustee to turn over to him one-third part of the trust fund. The right to receive this third part of the trust fund was on that day vested in William D. Holmes, alike whether his remainder prior to that time had been vested or contingent; and it is not necessary to consider whether it was vested or contingent. If contingent, it yet would become vested at the end of each 5-year period as to the one-third part which then was to be paid over; if vested, it was liable, as to all parts to which the right had not thus become finally vested, to be divested by his decease before the expiration of 15 years from the death of his father. He became accordingly the rightful owner of one-third part of the trust fund on August 21, 1902. See Welch v. Brimmer, 169 Mass. 204, 47 N.E. 699; Claflin v. Claflin, 149 Mass. 19, 20 N.E. 454, 3 L. R. A. 370, 14 Am. St. Rep. 393; Sears v. Putnam, 102 Mass. 5. The fact that the trustee had a few days before paid and conveyed to him the whole fund did not diminish his right. The final direction given by the will to the trustee, 'if both [the widow and the son of the testator] should die before the expiration of said fifteen years to pay over all my estate to the legal heirs of the survivor,' can refer only to that part of his estate which should not have been already paid over or which had not already become finally vested at the expiration of the respective 5 and 10 year periods. Just as the survivor of the wife and the son, if the former had not waived the provisions of the will, would take only what had not been paid over or become vested under the previous limitations, so that rights of the heirs of the survivor under the final provision must be similarly limited. It follows that although the conveyance of August 4, 1902, was made by the trustee without right, yet William D. Holmes the grantee therein named was, after August 21, 1902, the rightful owner and holder of one-third part of the property named therein; and, as his right has passed to his widow the defendant Ever M. Holmes, she ought not now to be disturbed in her enjoyment of that part of the original trust fund.

It is not disputed, however, that as William D. Holmes died on May 20,...