Lovett v. Farnham

• Decision Date: 15 June 1897
• Citation: 47 N.E. 246,169 Mass. 1
• Parties: LOVETT v. FARNHAM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

169 Mass. 1

47 N.E. 246

LOVETT v. FARNHAM et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 15, 1897

COUNSEL

F.L. Hayes, for M.F. Storrs.

A.T Johnson, for F.D. Montgomery.

S.H Tyng, for G.W. Montgomery and others.

J.E Farnham, pro se.

OPINION

BARKER J.

No power of revocation is reserved to the original owner of the property put in trust by the instrument of April 21, 1891. The stipulation that the trustee shall pay over to her "such portion of the principal as she, in her judgment, may deem necessary for her comfort and support," is not a power of revocation, but an agreement for the performance of the trust in a way declared by the instrument itself. If he pays over to her the whole principal upon its being deemed necessary by her for her comfort and support, she has not revoked the trust, but has required its performance, and the trustee has executed it, and the instrument, having performed its office, no longer controls the disposition of the property. In this commonwealth it is settled that a voluntary trust, completely established, with no power of revocation reserved, cannot be revoked or set aside at the will of the person by whom and with whose property it was set on foot. Taylor v. Butterick, 165 Mass. 547, 43 N.E. 507; Keyes v. Carleton, 141 Mass. 45, 6 N.E. 524; Sewall v. Roberts, 115 Mass. 262; Viney v. Abbott, 109 Mass. 300; Falk v. Turner, 101 Mass. 494; Stone v. Hackett, 12 Gray, 227, 230; Hildreth v. Eliot, 8 Pick. 293.

The settlor requested, in writing, of the trustee, the whole principal of the fund, stating in the writing that she deemed it necessary at that time for her comfort and support. This request was acceded to by the trustee without question, and was in effect complied with, not literally, by actually paying over or transferring the principal, but by a new written acknowledgment, signed by her and the trustee, that the latter had received and was possessed of her property, and that, by her authority and request, he agreed to hold and invest it, paying to her the income, and also such portion of the principal, from time to time, as she might desire, and, at her death, to transfer all of the property then held to the executor of her will. But it also appears from the petition, the allegations of which are admitted, that one of her two children (to whom, by the terms of the original trust, what should remain of the fund after the payment upon her death of her debts and funeral expenses was to go, share and share alike, if then living) had died on April 4, 1896, and that about April 16, 1896, her grandson called upon the trustee, and stated to him that she then wished to create a new trust, and to take up the old one, and to make a different disposition of the fund. The trustee referred the grandson to an attorney, as a proper person to consult in regard to such steps as were necessary; and thereafter her letter requesting of the trustee the whole principal of the fund, and stating that she deemed it necessary at that time for her comfort and support, was given to the trustee, and a copy of an instrument purporting to be her last will was shown to him. Then, on May 21, 1896, the new trust instrument of that date was presented to him, and signed by him in duplicate, and he was at the same time informed that the two papers, the written request of April 16th and the new trust agreement of May 21st, constituted a revocation of the first trust, and that a new trust was created, and that the property held by him under the first trust had been revested in him under the second trust. The trustee had no personal interview with the settlor after the making of the first trust, and never made to her, or to any agent or attorney for her, any actual delivery of the trust property, or any assignment, transfer, or bill of sale. She was a widow, and he had been the executor of her husband's will, and the property put in trust by the instrument of April 21, 1891, was about $6,000 in amount, and came from three policies of life insurance upon the deceased husband's life, which were among the assets of his estate. What other means than this money she had does not appear. She had only two children, a son and a daughter, each of whom had children, and there is no statement as to their pecuniary circumstances. She left a will dated November 5, 1890, giving her wearing apparel, household furniture, gold watch, and silverware to her daughter, and the residue of her estate to her son and daughter, share and share alike; also a codicil, dated April 17, 1896 (the son having died April 4, 1896), revoking the legacies and devises given by the will, and bequeathing $1,000 to be equally divided between the children of her deceased son, and all the residue of her property, real and personal, to her daughter, but further providing otherwise if the daughter should die before her, which did not in fact happen, the mother dying on June 10, 1896, and her daughter surviving until September 2, 1896. There are now living three children of the daughter, and three of the son. Two of the daughter's children are of full age, and one of them and all of the son's children are minors.

Considering all these circumstances, it is difficult to decide whether what has happened constitutes a performance or an ineffectual revocation of the original trust. On the one hand are the statements to the trustee, that the settlor wished to create a new trust,...