Massachusetts Institute of Technology v. Loring

• Decision Date: 29 June 1951
• Citation: 99 N.E.2d 854,327 Mass. 553
• Parties: MASSACHUSETTS INSTITUTE OF TECHNOLOGY et al. v. LORING et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 854

99 N.E.2d 854

327 Mass. 553

MASSACHUSETTS INSTITUTE OF TECHNOLOGY et al. v. LORING et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued May 9, 10, 1951.

Decided June 29, 1951.

C. C. Cabot, Boston, J. B. Ames, H. T. Davis and J. M. Woolsey, Jr., all of Boston, for Mass. Institute of Technology et al.

R. G. Dodge, T. Chase, and R. M. Robinson, all of Boston, for Augustus P. Loring, Jr., et al.

T. L. Gannon, F. T. Doyle, and F. T. Doyle, Jr., all of Boston, for Edmund Bailey Frye et al. executors.

Before LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ.

LUMMUS, Justice.

This case involves the interpretation of the will of Marian Hovey, late of Gloucester, an unmarried woman, who died on August 28, 1898, and whose will was admitted to probate on October 3, 1898.

The petition before us was filed in the Probate Court on July 21, 1950, by Massachusetts Institute of Technology, Museum of Fine Arts, and the President and Fellows of Harvard College, hereinafter collectively called the charities. They claim to be remaindermen of a trust under the seventh paragraph of the will of said Marian Hovey. The petition asserts rights to large sums of money which the petitioners contend rightfully belong to the trust under the will of Marian Hovey.

By answer in the nature of a plea the respondent Anna Braden Morse sets up that the charities are not the remaindermen of the trust under the will of Marian Hovey, because the condition under which they were to take never happened. Augustus P Loring, Junior, and Caleb Loring, as executors of the will of Cabot J. Morse, Senior, filed a similar plea. Both these pleas were sustained, and the petition of the charities was dismissed, on January 4, 1951. The charities appealed to this court.

By the seventh paragraph of her will, Marian Hovey gave the residue of her estate, including the property over which she had a power to appoint under the will of her late father, George O. Hovey, to trustees, to pay the net income to her brother Henry S. Hovey and her sister Fanny H. Morse. After the death of the sister, the income was to be paid in equal shares to her sons Cabot J. Morse and John Torrey Morse, 3d.

The will continued: '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 by 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.'

The will continued: '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. If neither of my said nephews leave such appointees then living the whole trust fund shall be paid over and transferred in equal shares to' the petitioning charities.

Henry S. Hovey died unmarried and without issue in 1900. Fanny H. Morse died in 1922, leaving two sons, J. Torrey Morse and Cabot J. Morse. J. Torrey Morse died unmarried and without issue in 1928. That left Cabot J. Morse as the only person entitled to appoint under the will of Marian Hovey.

Cabot J. Morse died in August, 1946, testate, leaving his second wife Anna Braden Morse, who was born prior to the death of Marian Hovey, and a son by an earlier marriage, Cabot J. Morse, Junior, who himself died in September, 1948. Anna...