Leverett v. Rivers

• Decision Date: 03 March 1911
• Citation: 94 N.E. 470,208 Mass. 241
• Parties: LEVERETT et al. v. RIVERS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 241

94 N.E. 470

LEVERETT et al. v. RIVERS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1911

COUNSEL

Richard D. Ware, for respondents and guardian ad litem.

John C Gray and Roger Ernst, for younger children of Rosalie G Sheffield.

OPINION

LORING J.

By her last will, modified by a first and third codicil, Lydia Smith Russell left one-third part of her estate to her son Jonathan for life without the intervention of trustees, with power in a contingency which took place to appoint his third 'among my lineal heirs, to have and enjoy the same upon such terms' as he might prescribe. She died in 1859, leaving in addition to the son Jonathan a daughter, Geraldine, who was twice married, and Rosalie Russell who died a spinster. Jonathan died in 1875. By his will he appointed that part of his share of his mother's estate here in question to trustees in trust for his two sisters during their respective lives and in case Geraldine died before Rosalie (which event happened) to divide her share into as many portions as there should be children of Geraldine living at the date of his will and living at Geraldine's death, and to pay over to her son one-third outright and to hold the portions set aside for daughters in trust to pay the income to the daughters for life, and upon the death of each daughter to transfer and convey that portion of the deceased daughter to and among her children and the issue of any deceased child taking by right of representation, and upon the death of Rosalie to hold any pay over her half upon the same trusts. Geraldine left three children, George R. R. Rivers, Mary Rivers, and Rosalie G. Rivers, who married Mr. Shields and later Mr. Sheffield.

All Geraldine's children were born in the lifetime of Lydia Smith Russell, and the appointment to them for life and the appointment over as they should respectively decease is confessedly not too remote. Dorr v. Lovering, 147 Mass. 530, 18 N.E. 412; Minot v. Doggett, 190 Mass. 435, 77 N.E. 629.

The question which has to be decided arises from the fact that when Jonathan died Geraldine's youngest daughter Rosalie, then Mrs. Shields, had one child, and after Jonathan's death she married again and had eight more children; and the defendants other than these nine children of Mrs. Sheffield contend that the appointment over to the eight born after Jonathan's death is invalid.

This result is based on two contentions, namely: First, that it was so decided by a single justice in 1887; and second, that as matter of construction of Mrs. Russell's will the class among which Jonathan had a power to appoint was to be ascertained at his (Jonathan's) death. Neither contention is in our opinion well founded.

1. What gives rise to the first contention is the finding or findings made by a single justice in 1887, in a bill for instructions brought by the executors of Jonathan soon after his death in 1875. The question whether the contingency had happened on which Jonathan had a power of appointment seems to have occupied the first ten years next after the bill was brought. In 1885 a decree was entered declaring that the will of Jonathan operated as an effectual appointment of the residue of the fund for the lives of Geraldine (who had died while the suit was pending) and Rosalie. In addition the executors were directed to pay one-half of the income then in their hands to the executor of Geraldine and one-half to Rosalie; and further they were directed to transfer one-half of the principal to certain trustees to hold for Rosalie for life, with liberty to any party to the suit to apply.

In 1887 the suit came on for hearing on the disposition to be made of the share of which Geraldine had the income for life, On the conclusion of this hearing four findings were made by the single justice who heard the suit. ^[1] At this time seven of the eight children born to Mrs. Sheffield after Jonathan's death had been made parties defendant to the bill. There seems to be a conflict between the finding 'that the death of the donee Jonathan was the time when the 'lineal heirs' of said Lydia were to be ascertained and determined' and the finding 'that the will of Jonathan Russell was a valid exercise of the power of appointment given to the said Jonathan by the will and codicils of Lydia S. Russell,' at least if this finding is to be taken to be a finding on the gifts over after the life...