Hutchins v. Browne

• Decision Date: 01 June 1925
• Citation: 147 N.E. 899,253 Mass. 55
• Parties: HUTCHINS et al. v. BROWNE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 55

147 N.E. 899

HUTCHINS et al.

v.BROWNE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 1, 1925.

Appeal from Supreme Judicial Court, Suffolk County; J. C. Crosby, Judge.

In the matter of the estate of George H. Browne, deceased. Petition by Edward W. Hutchins and another, trustees under will of decedent, against Harrie W. Browne and another, for instructions as to disposition of income from funds in trust. From a decree rendered, declaring defendant Dorothy Colt G. Browne not entitled to income therefrom, she appeals. Affirmed.S. H. Batchelder, of Boston, for Harrie W. Browne.

A. T. Sieker, of New York City (T. L. Walsh, of Boston, on the brief), for Dorothy C. G. Browne.

Hutchins & Wheeler, in pro. per.

CARROLL, J.

By the third clause of the will of George H. Browne, dated November 28, 1873, and allowed by the probate court for the county of Suffolk January 28, 1878, the testator having died October 27, 1877, the residue of his estate was given to trustees to divide the net income, ‘after paying the expenses and charges of this trust and the annuity provided in the second item’ of the will, equally among his lawful children ‘who shall survive * * * [him] during their respective lives'; the trust to continue until the death of the child who shall longest survive, ‘the child or children of any of my children who shall die leaving a child or children, to take the same share of the income that the parent would if living.’ Harrie W. Browne, one of the defendants, the only surviving child of the testator, contends that the net income or the trust, accruing since the death of his brother, belongs to him, his brothers and sisters having died without issue. The other defendant, Dorothy C. G. Browne, was adopted on the petition of George C. Browne, and his wife, and by a decree dated May 20, 1919, of the surrogate's court in and for the county and the state of New York, became their legally adopted daughter. She was born November 13, 1897. George C. Browne was a son of the testator. He died January 27, 1924. Dorothy C. G. Browne contends that she is entitled as the adopted daughter of George C. Browne, to share in the income of the trust estate accruing since the death of George C. Browne. The trustees ask to be instructed whether the entire income belongs to Harrie W. Browne, or is to be paid to him and Dorothy C. G. Browne. $The single justice found that the trust in question has for nearly fifty years been administered in Massachusetts, where the trustees are residents, and where the will was probated; and he ruled that, if the rights of Dorothy C. G. Browne under the will are not governed by the laws of this commonwealth, they are controlled by the laws of England, and that under either jurisdiction she has no right under the will, unless the testator intended she should share in the income. He further found that she was not born until twenty years after the testator's death, and was not adopted until more than forty years after his death; that there was no intention on the part of the testator to include her under the third clause of his will; and found and ruled that Harrie W. Browne was entitled to all the income. A decree was entered in accordance with these findings and rulings.

[1][2] In our opinion the law of this commonwealth governs in the construction of this will. The testator describes himself as, ‘I George H. Browne formerly of Boston in the state of Massachusetts now resident of Manchester in England Merchant.’ The three witnesses to the will were residents of Manchester. The testator gave a legacy to his ‘partner in business Joseph H. White of Boston’; he appointed him one of the trustees and executors, and also appointed him guardian of his minor children. The other executors and trustees were of Boston and New York. The testator further directed that in default of grandchildren or issue of grandchildren, the estate was to be divided between his heirs at law, ‘according to the provisions of the then existing laws of Massachusetts.’ The fact that the testator described himself as a resident of Manchester, England, was not enough to establish his domicile in England. Residence is a circumstance to be taken into account in considering the domicile of a person, but it is not conclusive. His domicile was a question of fact. White v. Stowell, 229 Mass. 594, 119 N. E. 121;Feehan v. Tax Commissioner, 237 Mass. 169, 129 N. E. 292.

We must assume that the domicile of the testator at one time was in Boston. There is nothing designating the acquisition of a new domicile except the statement that his residence is in Manchester, England. On the other hand, the testator's reference to his partner in business as of Boston, his appointment of him as guardian of his children and as one of his executors and trustees, the appointment of Henry C. Hutchins of Boston and Francis D. Lecompte of New York also as his executors and trustees, and the provision in the will that the remainder of his estate was to be divided among his heirs at law according to the laws of Massachusetts, all indicate that he desired his estate to be administered in accordance with the laws of Massachusetts, and that its care and management were to be in the control of these men, none of whom resided in England, and one of whom ...