Kirwin v. Attorney Gen.
| Decision Date | 02 March 1931 |
| Citation | 275 Mass. 34 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | FREDERICK H. KIRWIN, administrator, v. ATTORNEY GENERAL& others. |
December 3, 4 1930.
Present: RUGG, C.
Probate Court Jurisdiction, Petition for distribution, Parties. Devise and Legacy, Charity, Validity. Trust, Validity, Charitable. Evidence, Competency. Executor and Administrator.
A testator by his will gave the residue of his estate "to my executors hereinafter named, in trust, for such public charitable purposes as shall meet their approval under the conditions in which they may be called to act." After the administration of the estate had been completed, but before distribution of the residue had been made, the survivor of the executors named died. One who was appointed administrator de bonis non with the will annexed filed a petition in the Probate Court alleging that the surviving executor had "designated . . . his purpose to distribute" the residue to certain public charities in certain amounts and that the petitioner adopted such scheme; and sought a decree ordering distribution in accordance therewith or in some other manner. The Attorney General, the widow and heirs of the testator and the charities specified were made parties.
At the hearing of the petition, evidence was admitted that the surviving executor had prepared a list of said charities, on which was noted the amount to be paid to each, and had consulted the Attorney
General and secured his approval thereof; and that he had inquired of one of the charities concerning the sum necessary to accomplish a certain purpose. The judge of probate found that the scheme of distribution was just and reasonable and that he adopted it as the scheme of the court, and a decree was entered directing the petitioner to make distribution in accordance therewith. Upon appeal by one of the testator's heirs, it was held, that
(1) The petition in reality was a petition for distribution; (2) In the circumstances, there was no impropriety in entertaining the petition although the petitioner had not secured his appointment as trustee under the will and turned over to himself in that capacity the residue of the estate for the purpose of seeking the same order for distribution as that sought by the petition;
(3) The Probate Court, having jurisdiction of the testator's estate, had jurisdiction of the matter concerned in the petition;
(4) There was nothing in the words of the will to show that the testator placed a personal confidence in the executors named which would permit action by them only, and the trust established did not fail by reason of the deaths of the named executors: their power with respect to the residue devolved upon the petitioner or upon the
Probate Court if he should fail to exercise it; (5) The words of the will established a valid charitable trust;
(6) All parties in interest were before the court: the widow and the heirs of the testator and the Attorney General were necessary parties, and the designated charities were at least interested and proper parties;
(7) There was no error in the admission of the evidence: it was competent to enable the judge of probate to act with full knowledge of all matters material to the rightful distribution of the residue;
(8) The will having created a valid charitable trust, the appellant had no standing to object to the designation of the beneficiaries thereof by the petitioner or by the judge of probate;
(9) The decree was affirmed.
PETITION, filed in the Probate Court for the county of Middlesex on August 9, 1929, described in the opinion.
The petition was heard by Leggat, J., a stenographer having been appointed under G.L.c. 215, Section 18, as amended. Material evidence and a decree entered by order of the judge are described in the opinion. The administrator with the will annexed of Charles F. Buttrick appealed.
A.P. Stone, (J.H. Ramsey with him,) for the respondent Cook, administrator.
E.K. Nash, Assistant Attorney General, for the Attorney General. J.J. Flynn, for The Waltham Hospital and another.
J.L. Harvey, for The Leland Home for Aged Women. E.C. Jenney, for Tufts College.
G.P. Davis, for Waltham Training School for Nurses and another, submitted a brief.
G.P. Drury, for Waltham Chapter, American National Red Cross, submitted a brief.
The residuary clause of the last will of Francis Buttrick of Waltham in the county of Middlesex set out: "All the rest, residue and remainder of my estate, however invested designated, or described, I give, devise, bequeath to my executors hereinafter named, in trust, for such public charitable purposes as shall meet their approval under the conditions in which they may be called to act." The will bore date of December 29, 1892, and was duly admitted to probate on November 7, 1894. Five persons were nominated as executors, all of whom qualified. The survivor, Thomas H. Armstrong, died in June, 1927. The property consisted in considerable part of parcels of real estate, the last of which was not converted into money until 1927. All other legacies were paid, and all matters of administration on the estate were completed before the death of Armstrong, except the presentation and allowance of the final account of the executors and the payment over of the residuary bequest. A sum in excess of $60,000 remained in the hands of the remaining executor. The petitioner was duly appointed administrator with the will annexed of the goods not administered in August, 1927. He filed this petition in the Probate Court on August 9, 1929, alleging the death and the allowance of the will of Francis Buttrick; the qualification of the executors, the payment by them of all specific and pecuniary legacies and of all debts and charges of administration; the death of all the executors without having disposed of the residue or having distributed it for charitable purposes, except that Armstrong, the survivor, "designated his approval of the distribution of the balance remaining in his hands, and his purpose to distribute said balance, to the following charitable purposes" (naming eight corporations or organizations admitted to be public charities, to which are assigned varying amounts aggregating $60,760); a description of the suggested donees; the appointment and qualification of the petitioner; the filing of his present account showing a balance on hand of $64,186.88; the completion of all matters of administration by him excepting the disposition of the balance; and his adoption of the scheme of the last surviving executor for distribution, so far as he has right and authority. The petition sets out the terms of the residuary clause and annexes a copy of the will; and it further alleges that the petitioner is in doubt what disposition to make of the funds in his hands. It prays that the court will order distribution of the balance to the charities named, in proportion to the amounts proposed by Armstrong, or will order in what manner it be distributed and to whom it be paid. The Attorney General, the heirs at law and next of kin or their personal representatives where they are no longer living, the administrator with the will annexed of the goods not already administered of the estate of the widow, and the several charities named by Armstrong are made the defendants. All were duly served with notice. The Attorney General, all but one of the several charities, and the administrator with the will annexed of an heir, appeared and answered. The petition was taken as confessed against such respondents as did not appear and answer. A motion that the paragraph alleging the designation of distributees by Armstrong be struck out was denied.
At the hearing the appellant, administrator with the will annexed of one of the heirs, objected to the introduction of evidence by the petitioner and to any argument or statement on his behalf. Against his exception, evidence was admitted that Armstrong, early in 1927, consulted the Attorney General with reference to his account as executor, called to his attention a list of the charities to which he proposed to make distribution of the residue in his hands, marked in pencil on the list the amount he purposed giving to each charity, and asked his assent. The Assistant Attorney General, to whom the matter was entrusted, wrote Armstrong that the scheme proposed met with the approbation of the Attorney General. He produced at the hearing the list with the penciled amounts which had been left in his office. The letter stated that the Attorney General did not care to be heard on allowance of the account and was so notifying the register of probate, but felt that no further charges should be made. It also stated: Armstrong, from his sick bed, acknowledged receipt of this letter and promised, as soon as he was able, to take up the matter "and notify you, as requested, when distribution has been made." He died shortly after, without having filed the account and without other designation of disposition of the residue. The attorney for Tufts College, one of the distributees suggested, was permitted to put in evidence a letter of Armstrong's dated April 11, 1927, inquiring of the registrar the amount necessary for a scholarship and stating that he had a sum he wished to give, but must first have the approval of the Attorney General; and the reply of the president of the college, stating an amount and the need for scholarships. The petitioner testified that Armstrong had discussed with him the charities to...
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