Jones v. Old Colony Trust Co.

• Decision Date: 27 February 1925
• Citation: 251 Mass. 309,146 N.E. 716
• Parties: JONES v. OLD COLONY TRUST CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 309

146 N.E. 716

JONES

v.OLD COLONY TRUST CO. et al.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 27, 1925.

Report from Superior Court, Essex County; Marcus Morton, Judge.

Bill in equity by Philip N. Jones, administrator, against the Old Colony Trust Company and others, to recover property alleged to belong to plaintiff's decedent. Demurrers to bill were overruled, and case reported. Interlocutory decree reversed, and decree entered sustaining demurrer.

P. N. Jones, of Boston, for plaintiff.

S. H. Pillsbury, of Boston, for Old Colony Trust Co.

H. W. Ogden, of Boston, for Cathedral Church of the Diocese of Massachusetts.

RUGG, C. J.

This is a suit in equity brought by an administrator for the recovery of property alleged to belong to the estate of his intestate. She transferred to the Old Colony Trust Company, hereafter called the defendant, deposits in banks and other securities. The transfer was made by instrument in writing and under seal in terms selling the legal title and delivering possession of all the property, described in detail in a schedule annexed, but upon specified trusts. Those trusts were to hold, manage, invest and reinvest in its sole discretion, with the widest powers in this respect, to pay the income during her life to the intestate or in accordance with her directions, and at her decease to liquidate the fund and distribute it among numerous named beneficiaries. Power was reserved to alter or amend the trust instrument in writing and to require the trustee to pay over to the settler ‘at one time or from time to time such portion or all of the principal of the trust fund as may be requested’ by her in writing.

[1] The validity of this trust is established by Stone v. Hackett, 12 Gray, 227. The instrument of trust there assailed, while slightly less explicit than the one in the case at bar, contained unequivocal power of modification and revocation with requirement for payment of income to the donor during his life. The power of management and control conferred upon the trustee in that case was less ample and unrestrained than in the case at bar. That case was decided more than sixty years ago. It had been cited many times, always with respect. It must be regarded as an unshaken authority. Doubtless many trusts have been declared in reliance upon the principle there established. It may be treated as a rule of property.

[2][3] The validity of such a trust instrument being under seal and accompanied by actual delivery of the property, is not open to successful attack because of want of consideration. This was a fully executed trust inter vivos. A purely voluntary trust will be upheld in such circumstances. Reservation of income to the settler for life does not impair the validity of the trust. Viney v. Abbott, 109 Mass. 300;Gerrish v. New Bedford Institution for Savings, 128 Mass. 159, 35 Am. Rep. 365;Chippendale v. North Adams Savings Bank, 222 Mass. 499, 502, 111 N. E. 371.

The power to change the terms of the trust does not affect the validity of the trust. Kelley v. Snow, 185 Mass. 288, 70 N. E. 89.

[5] The right in the donor to withdraw the principal of the trust does not defeat the trust. Stone v. Hackett, 12 Gray, 227;Davis v. Ney, 125 Mass. 590, 28 Am. Rep. 272. Such unqualified right in reason stands on the same footing as the right to withdraw as and when required for the support of the donor, which has been upheld. Lovett v. Farnham, 169 Mass. 1, 47 N. E. 246. The soundness of the decision in Stone v. Hackett is either affirmed or recognized in numerous cases where not absolutely essential to the judgment. Kendrick v. Ray, 173 Mass. 305, 310, 53 N. E. 823,73 Am. St. Rep. 289;Seaman v. Harmon, 192 Mass. 5, 8, 78 N. E. 301;Bone v. Holmes, 195 Mass. 495, 505, 81 N. E. 290;Mackernan v. Fox, 220 Mass. 197, 200, 107 N. E. 919.

The case of McEvoy v. Boston Five Cents Savings Bank, 201 Mass. 50, 87 N. E. 465, is distinguishable. There the nominal trustee had none of the ordinary powers of a trustee and was in substance and effect only an agent of the donor. In many cases upon which the petitioner relies the attempted creation of a trust or gift was held to be the equivalent of an agency or bailment. Hale v. Joslin, 134 Mass. 310;Nutt v. Morse, 142 Mass. 1, 6 N. E. 763;Stratton v. Athol Savings Bank, 213 Mass. 46, ...