Kelley v. Snow

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: HAMMOND
• Citation: 185 Mass. 288,70 N.E. 89
• Parties: KELLEY v. SNOW et al.
• Decision Date: 09 March 1904

185 Mass. 288
70 N.E. 89

KELLEY
v.
SNOW et al.

Supreme Judicial Court of Massachusetts, Bristol.

March 9, 1904.

Case Reserved from Supreme Judicial Court, Bristol County; Marcus P. Knowlton, Judge.

Petition for instructions by Bernard F. Kelley, executor and trustee, against Benjamin F. Snow and others. Case reserved for the full court. Decree rendered.

The following are the will and codicils to the will of Mary Ann Snow:

‘Know all men by these presents that I, Mary Ann Snow, of New Bedford, Bristol County, Massachusetts, being of sound and disposing mind and memory, do make, publish and declare this my last will and testament.

‘First. I order my executor hereinafter named as soon as convenient after my decease to sell all my property, real, personal or mixed, and I hereby authorize and appoint my said executor to sell said property, both real and personal, either at private sale or public auction, and to make, execute and deliver all deeds, bills of sale or other instruments necessary to carry such sales into effect.

‘Second. After the payment of all my debts, funeral expenses and the charges of administration, and the amount to which my husband, Benjamin F. Snow, would by law be entitled from the proceeds of said sale, I give and bequeath to Mary Ann Hammond, my niece, the sum of one thousand dollars.

‘Third. All the rest, residue and remainder of my estate, real, personal or mixed, I give, devise and bequeath to Thomas R. Hillman in trust, nevertheless, for the following trust purposes only, viz: to keep the same safely invested and to pay over the income therefrom to Gracie Kirwin for and during the term of her natural life. At her death I direct my said trustee to pay over said trust fund, together with all accumulations of interest to the issue of said Gracie Kirwin if she die leaving issue surviving her. If the said Gracie should die leaving no issue surviving her I direct my said trustee to pay over said trust property in equal shares to Mary Ann Hammond, Thomas Meade, son of my brother, John Meade, and Bernard Kelly.

‘Fourth. I nominate and appoint Thomas R. Hillman as executor of this will and request that he be not required, either as executor or trustee under this will, to furnish surety or sureties on his official bond.

‘In witness whereof I have hereunto set my hand this twenty-third day of June A. D. 1892.

‘Mary her X mark. Ann Snow.

‘Signed, published and declared by the said Mary Ann Snow as and for her last will and testament in presence of us, who, at her request, in her presence and in the presence of each other have hereunto set our names as witnesses.

Henry B. Worth.

‘Garry de N. Hough.

‘Philip E. Macy.’

‘I, Mary Ann Snow make this codicil to my will above executed. I revoke and cancel in the second clause of my will the words, ‘And the amount to which my husband, Benjamin F. Snow, would by law be entitled,’ and I hereby give and bequeath to my said husband the sum of two thousand dollars, except as herein changed by this codicil I hereby ratify and confirm my said will.

‘In witness whereof I hereto set my hand this twenty-third day of June A. D. 1892.

‘Mary her X mark. Ann Snow.

‘Signed, published and declared by the said Mary Ann Snow as and for a codicil to her last will, in presence of us, who at her request, in her presence and in presence of each other hereto set our names as witnesses both to the signature of Mary Ann Snow and Benjamin F. Snow her husband.

‘Henry B. Worth.

‘Garry de N. Hough.

‘Philip E. Macy.

‘I hereby consent to this codicil and the foregoing will as changed by this codicil.

‘Benj. F. Snow.’

‘I, Mary Ann Snow, make this second codicil to my will dated June 23d 1892.

‘I revoke section four of my said will and substitute therefor the following section.

‘I nominate and appoint Bernard Kelley of Rochester, New York, executor of the foregoing will and codicil.

‘In witness whereof I hereto set my hand this first day of November, A. D. 1893.

‘Mary her X mark. Ann Snow.

‘Witnessed by us and subscribed in the presence of the said Mary Ann Snow.

‘Henry B. Worth.

‘John L. G. Mason.

‘Tillinghast Kirby.’

‘I, Mary Ann Snow, wife of Benjamin Snow of New Bedford, Bristol County, Massachusetts, make this codicil to my last will in manner following. My will and the codicil thereto are dated June twenty-third 1892, and my husband, Benjamin F. Snow, assented thereto and I hereby ratify and confirm said will and codicil except as herein changed.

‘1. My friend Thomas R. Hillman has deceased and I appoint as executor of this will my nephew Bernard Kelly and I request that he be excused from furnishing sureties or a surety on his official bond. He shall have all the power given in said will to Hillman.

‘2. The third clause in said will, wherein the rest, residue and remainder of my estate was given in trust to Thomas R. Hillman for the benefit of Gracie Kirwin I hereby cancel and revoke, also the bequests therein given at the end of said third clause to Mary Ann Hammond, Thomas Meade and Bernard Kelly and issue of Gracie Kirwin.

‘3. Whereas the said Bernard Kelly entered into a trust agreement dated September eleventh, 1893, wherein he agreed upon receipt of eleven savings bank deposits to make certain disposition of the same as in said agreement contained. I do now cancel said disposition and revoke the same and in place thereof substitute the following bequests:

‘4. I direct my executor to deposit with the Treasurer of the City of New Bedford the sum of two hundred dollars the income from which shall be used in the care and preservation of my burial lot in Oak Grove Cemetery in New Bedford.

‘5. I give and bequeath to Bernard Kelly, my nephew, three thousand dollars.

‘6. I give and bequeath to my sister, Elizabeth Kelly, two thousand dollars.

‘7. I give and bequeath to my niece, Mary Ann Hammond, the sum of two thousand dollars, one half of my silver, one feather bed, three mats and one set gold band china crockery.

‘8. To the following named persons I give and bequeath the sum of one thousand dollars each; Thomas Meade, son of my brother John Meade; John Meade, son of the aforesaid Thomas Meade; Mary Meade, daughter of Thomas and grand-daughter of my brother John Meade; Mary C. Hammond, daughter of said Mary Ann Hammond; Elizabeth E. Hammond, daughter of said Mary Ann Hammond; Herbert Hammond, son of said Mary Ann Hammond; Edward Kelly, son of my sister Elizabeth; William Meade, son of my brother John Meade; William Meade, son of Thomas and grandson of my brother John.

‘9. All the rest, residue and remainder of my estate, real, personal or mixed I give, devise and bequeath to the said Mary Ann Hammond.

‘In witness whereof I hereto set my hand this twenty-eighth day of June, 1901.

‘Mary her X mark. Ann Snow.

‘Signed, published and declared by the said Mary Ann Snow as and for a codicil to her last will and testament in presence of us, who at her request, in her presence and in presence of each other have hereto put our names as witnesses.

‘Henry B. Worth.

‘F. H. Freeman, Nurse.

‘E. C. Coombs, Nurse.’

The trust deed reads as follows:

‘Know all men by these presents that I, Mary Ann Snow, of New Bedford, Bristol County, Massachusetts, for a valuable consideration, do hereby assign and transfer unto Bernard F. Kelley, of Rochester, New York State, all my personal property, consisting of my household furniture and furnishings and silver and clothing; and the following deposits in savings banks, viz: Money on account No. 72,088, New Bedford Institute for Savings; money on account No. 80,718, New Bedford Institute for Savings; money on account No. 52,083, New Bedford Institute for Savings; money on account No. 37,335, New Bedford Institute for Savings; money on account No. 44,665, New Bedford Institute for Savings; money on account No. 47,319, New Bedford Institute for Savings; money on account No. 56,762, New Bedford Institute for Savings; money on account No. 79,772, New Bedford Institute for Savings; money on account No. 26,431, New Bedford Five Cents Savings Bank; money on account No. 39,962, New Bedford Five Cents Savings Bank; money on account No. 14,261 Plymouth Savings Bank, Plymouth, Mass.-in trust, nevertheless, for the following trust purposes only and not otherwise, viz:

‘First. Said Mary Ann Snow is to retain possession of the property hereby assigned, together with the bank pass books representin said savings bank deposits to collect the income during her life.

‘Second. Said Mary Ann Snow shall have the power to change the following dispositions at any time upon written notice to said Kelley.

‘Third. At the decease of said Mary Ann Snow, said Kelley shall then take possession of said property and bank books and shall distribute the same as follows, providing the following dispositions have not been changed.

‘Fourth. To Mary Ann Hammond, wife of Herbert Hammond, one-half of my silver and one feather bed, three mats and one set gold band china crockery.

‘Fifth. To Grace Kirwin, my son's natural child, the remainder of my silver and household furniture and clothing.

‘Sixth. I direct my said trustee to deposit with the Treasurer of the City of New Bodford the sum of one hundred dollars, the income from which shall be used in the care and improvement of my burial lot in Oak Grove Cemetery, New Bedford, Mass.

‘Seventh. To Norah Meade three hundred dollars.

‘Eighth. To Bernard F. Kelley three thousand dollars.

‘Ninth. My said trustee shall hold in trust the sum of two thousand dollars, and shall pay the income thereof to said Mary Ann Hammond during her natural life. If her husband shall die during her life said trustee shall thereupon pay to her the whole of said trust fund. At her decease if said fund shall not have been paid to her as aforesaid it shall then be paid to her issue surviving her.

‘Tenth. My said trustee shall hold in trust the sum of five hundred dollars, and shall pay the income thereof to my brother James Mead during his life. At his decease said fund...