Loring v. Morse

• Decision Date: 17 December 1954
• Citation: 123 N.E.2d 360,332 Mass. 57
• Parties: Augustus P. LORING, Trustee, v. Anna Braden MORSE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 360

123 N.E.2d 360

332 Mass. 57

Augustus P. LORING, Trustee, v. Anna Braden MORSE et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued Oct. 8, 1954.

Decided Dec. 17, 1954.

Roy M. Robinson, Boston, stated the case.

Robert G. Dodge, Boston (Harold S. Davis, Boston, with him), for Anna Braden Morse.

Thomas L. Gannon, Boston, for Edmund Bailey Frye and others, executors.

Before QUA, C. J., and LUMMUS, WILLIAMS and COUNIHAN, JJ.

WILLIAMS, Justice.

This is a petition by Augustus P. Loring (formerly Augustus P. Loring III), succeeding trustee under the will of Marian Hovey, filed in the Probate Court on November 23, 1953, for instructions as to the disposition of $22,496.17 which was received by the preceding trustee from one Burns in the circumstances hereinafter described. The respondents are Anna Braden Morse who is the widow of Marian Hovey's nephew, a Cabot Jackson Morse, and the executors of the will of Cabot J. Morse, Junior, who was the son of Cabot Jackson Morse.

George O. Hovey, the father of Marian Hovey, died in 1877. By his will, as modified by a codicil, he left the residue of his estate in trust for the benefit of his three children, Marian Hovey, Henry S. Hovey, and Fann H. Morse, for their lives. It was provided that the trust should terminate on the death of the survivor of Henry and Fanny and the principal be paid to the testator's heirs then living. The will authorized each child who should die before, or simultaneously with, the termination of the trust, to 'dispose of, by will or appointment, one-sixth part of such principal, unless such deceased child shall leave issue her or him surviving, in which event such issue shall take, by representation, such one-sixth.' Marian died unmarried in 1898 and Henry died, also unmarried, in 1900. The trust terminated in 1922 on the death of Fanny who left two sons J. Torrey Morse and Cabot Jackson Morse.

By the seventh article of her will Marian left in trust 'All the residue of the property, real, personal and mixed, of which I may be possessed at my death, or over which I may have any power of appointment, and especially the property of which I have power to dispose by the will of my late father, George O. Hovey.' She provided that the income from the trust be paid to her brother and sister and after their deaths to her nephews J. Torrey Morse and Cabot Jackson Morse. The will contained the further provision that 'At the death of the last survivor of my said brother and sister and my two said nephews, or at my death, if none of them be then living, the trustees shall divide the trust fund in their hands into two equal parts, and shall transfer and pay over one of such parts to the use of the wife and issue of each of my said nephews as he may be will have appointed; provided, that if his wife was living at my death he shall appoint to her no larger interest in the property possessed by me than a right to the income during her life, and if she was living at the death of my father, he shall appoint to her no larger interest in the property over which I have a power of disposition under the will of my father than a right to the income during her life; and the same limitations shall apply to the appointment of income as aforesaid. If either of my said nephews shall leave no such appointees then living, the whole of the trust fund shall be paid to the appointees of his said brother as aforesaid.'

In 1922 John T. Morse, the trustee under the will of George O. Hovey, distributed the principal of the trust fund held under the terms of that will in equal shares to the testator's heirs then living, J. Torrey Morse and Cabot Jackson Morse. In this distribution Cabot Jackson Morse received securities of the approximate value of $300,000, which for the purposes of this case we assume constituted one half of the one sixth of the principal of the George O. Hovey trust over which Marian had the power of appointment. At the time of this distribution and until his death in 1946 Cabot Jackson Morse was one of the trustees under the will of Marian Hovey. He did not pay over to the Marian Hovey trust or account for any of this portion of the principal of the George O. Hovey trust which he had received, but retained it personally. J. Torrey Morse died in 1928 without ever having married, and thereafter Cabot Jackson Morse was entitled to the entire income of the Marian Hovey trust and held the power to appoint the whole trust fund by will to his 'wife and issue.' In 1934 he made a gift of substantially $300,000 to trustees to pay the income to his wife Alice Burns Morse for her life and provided that she have a general power to appoint the principal of this fund by her will. Alice Burns Morse died in 1941 leaving a will whereby this power was exercised and the fund left to trustees to pay the principal, after certain life estates which have now terminated, to her nephew Howard W. Burns.

After the death of Alice Burns Morse, Cabot Jackson Morse married the respondent Anna Braden Morse. On his death in 1946 his heirs were his wife and a son by his first wife, Cabot J. Morse, Junior. In paragraph 2 of his will he gave his son Cabot J. Morse, Junior, the sum of $1 'as he is otherwise amply provided for.' In paragraph 3 it was provided: 'The power of appointment which I have under the wills of my aunt, Marian Hovey, and my uncle, Henry S. Hovey * * * I exercise as follows: I appoint to my wife, Anna Braden Morse, the right to the income during her lifetime of all of the property to which my power of appointment applies under the will of Marian Hovey, and I appoint to my wife the right during her widowhood to the income to which I would be entitled under the will of Henry S. Hovey if I were living.'

In the fourth paragraph it was provided: 'All the rest, residue and remainder of my estate, wherever situated, real or personal, in trust or otherwise, I leave outright and in fee simple to my wife, Anna Braden Morse * * *.' Anna was living at the death of Marian Hovey but not at the death of Marian's father.

Cabot J. Morse, Junior, died in 1948, a resident of Alton in the State of New Hampshire. Pending procedings in that State respecting the allowance of his will, Frederick T. Doyle, Esquire, was appointed administrator of his estate in this Commonwealth. In October, 1949, Mr. Doyle filed a petition in the Probate Court joining as respondents the surviving trustee under the will of Marian Hovey, the executors of the will of Cabot Jackson Morse, the trustees under the will of Alice Burns Morse, and Howard W. Burns. In the petition it was alleged that the trustee of the Marian Hovey trust had a claim against the estate of Cabot Jackson Morse to recover property of not less than $300,000 in value which was an asset of the trust and had been wrongfully transferred without consideration by Morse to trustees for his wife Alice Burns Morse; that this property consisted of the same securities or their proceeds which he had received from the distribution of the George O. Hovey trust; and that these same securities or their proceeds were held by the trustees under the will of Alice Burns Morse for the benefit of Howard W. Burns who had become entitled to a distribution of the principal of that trust. It was further alleged that the trustee of the Marian Hovey trust had refused to act because of his interest in the estate of Cabot Jackson Morse of which he was a coexecutor and that the petition was brought by the estate of Cabot J. Morse, Junior, as remainderman of the Marian Hovey trust to enforce the claim for the benefit of that trust. It was sought to charge the assets of the Marian Hovey trust held by the trustees of the Alice Burns Morse trust with an...