Leverett v. Barnwell

• Decision Date: 28 February 1913
• Parties: LEVERETT et al. v. BARNWELL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 105

101 N.E. 75

LEVERETT et al. v. BARNWELL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1913

COUNSEL

Howard K. Brown, of Boston, for the Trustees.

J. L Thorndike and R. G. Dodge, both of Boston, for defendants Hoague and others.

S. S Fitz Gerald, of Boston, for defendants R. H. Barnwell and others.

W. D Turner, of Boston, for defendant Eliza S. Barnwell.

R. D. Ware, of Boston, for A. S. Hulbert and Boaz Duncan.

OPINION

BRALEY J.

The plaintiffs are trustees under an indenture which after reciting that the settlor from motives of good will was desirous of settling a certain fund for the maintenance and support of Edwin J. Hulbert, and Frances C. Hulbert, his wife, and for the benefit of their issue, and defining the powers of the trustees as to investments and reinvestments provided, that the fund should be held 'in trust to pay over the net rents, profits, dividends and income of said trust property quarter yearly as nearly as may be, but entirely at their discretion, and in such proportions as they may at the time of each payment fix and determine, to the said Edwin J. Hulbert and Frances C. Hulbert, his wife, or the survivor of them, and to their issue, or to any one or more of such persons, or at the discretion of said trustees to apply the same, or any part thereof for any one or more quarters to the support of any one or more of such persons, or to the education of any one or more of such persons, who may at the time of such application be under the age of twenty-one years, until the death of the survivor of said Edwin J. and Frances C., it being expressly provided, that the discretion of said trustees shall be absolutely free and unfettered as to which and how many of such persons shall receive each of said quarterly payments, and in what proportions, and as to whether and in what proportions or amounts the said rents, profits, dividends and income or any part thereof shall for any one or more quarters be applied to the support or education of any one or more of said persons, and as to withholding from any one or more all share in, or benefit from any one or more of said quarterly payments; and such discretion shall be exercised in the fullest and most unlimited manner at the time of making each of such quarter yearly payments, and not previously.' A spendthrift trust where there are no vested interests is here created, and the trustees from the beginning paid to the husband who survived his wife, but is now dead, the entire net income quarterly, although no regular quarter days were ever established. The trustees held at his death the income accruing since the last payment which amounted to nearly a quarter part. It having been further provided, that upon the death of the surviving spouse the trustees are to convey, divide, distribute and pay over the principal to and among their issue, who are to take by right of representation, the trustees if they have the power, intend to apportion the accrued income between the administrator of his estate and those who are entitled to take as his heirs at law. The question for decision therefore is, whether the accrued income fell into the principal upon the death of Edwin J. Hulbert. It is true that no specific provision for apportionment is found, if his death occurred between the quarterly payments. But this is not decisive. McElwain v. Hildreth, 203 Mass. 376, 379, 89 N.E. 567. The trust is not intended solely for the benefit of the remaindermen. It is primarily for the support and...