McKay v. Audubon Soc., Inc.

• Decision Date: 03 July 1945
• Citation: 318 Mass. 482,62 N.E.2d 117
• Parties: McKAY et al. v. AUDUBON SOC., Inc., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 482

62 N.E.2d 117

McKAY et al.

v.AUDUBON SOC., Inc., et al.

Supreme Judicial Court of Massachusetts, Middlesex.

July 3, 1945.

Petition in equity by John A. McKay and another, trustees under the will of Philip J. Blank, against Audubon Society, Inc., and others, for interpretation of decedent's will. From a decree that the residue of testamentary trust should be distributed at the death of testator's widow to those determined as of that time to be the heirs at law of testator, the trustees appeal and the case is reported.

Decree modified and as modified affirmed.Appeal and Report from Probate Court, Middlesex County; J. W. monahan, judge.

Before FIELD, C. J., and LUMMUS, QUA, RONAN, and WILKINS, JJ.

J. M. Joslin, of Boston, for petitioners.

G. F. McKelleget, of Boston, permitted to file a brief as next friend.

RONAN, Justice.

This is an appeal from a final decree entered upon a petition in equity under G.L.(Ter.Ed.) c. 215, § 6B, inserted by St.1935, c. 247, § 1, brought by the trustees under the will of Philip J. Blank, who died in 1923, leaving his widow, Marguerite A. Blank, one of the petitioners, two brothers, a sister, and two children of a deceased sister. The judge found all the facts to be as stated in the petition, and that Marguerite A. Blank had released the power of appointment given to her by the will. He entered a decree that the residue of the trust is to be distributed under G.L.(Ter.Ed.) c. 190 at the death of Marguerite A. Blank to those who are determined as of that time to be the heirs at law of the testator.

The first seven clauses of the will provided for the appointment of the executors and trustees, devised certain real estate to his brothers, bequeathed $1,000 to a friend, and gave the household effects and a life estate in the homestead-later changed by a codicil to a fee-and a legacy of $2,000 to his widow. The eighth clause established a trust in a parcel of real estate for the benefit of his niece, Gretchen Blank. She had the right to occupy it, or to receive the rent, or to have it sold and to receive the income from the proceeds. The property upon her death was to become a part of the residuary trust. By the ninth clause of his will the testator created a trust of the residue for the benefit of his wife, who was to receive the income and so much of the principal as might be necessary for her comfortable support. After her death, the trustees were to distribute the trust fund among five classes of legatees, designated as A, B, C, D, and E, respectively. Distribution was to be made in full to all the members of a class in the above order before distribution was made to the members of the next succeeding class. With reference to the distribution of the property held in trust for Gretchen Blank, the will provided that ‘distribution of the property included in the Eighth Clause of my will, [was] to take place only after the death of the beneficiary named therein.’ After the payment in full of all the legacies included in the said five classes specified in the ninth clause, the balance of the residuarytrust fund, if any, was to be disposed of in accordance with the following provision: ‘Ninth * * * Class E * * * (13) Any residue to such persons as my wife Marguerite A. Blank, may be will appoint, or in default of appointment, as though I died at the time of distribution intestate as to this property.’

The respondent Mr. McKelleget, who has been appointed the next friend of all persons not ascertained or not in being who may have an interest in the said estate, contends that the petitioners have no right to appeal. Only those who are aggrieved by an ‘order, decree or denial’ of the Probate Court may appeal to this court. G.L.(Ter.Ed.) c. 215, § 9. Under that statute a person is aggrieved if some pecuniary interest or personal right of his has been adversely affected, or if some public or official duty of his has been restricted or impaired by such order, decree or denial. Lawless v. Reagan, 128 Mass. 592;Monroe v. Cooper, 235 Mass. 33, 126 N.E. 286;Weston v. Fuller, 297 Mass. 545, 9 N.E.2d 538;Bolster v. Attorney General, 306 Mass. 387, 389, 28 N.E.2d 475;Ballard v. Maguire, 317 Mass. 130, 56 N.E.2d 891. The present proceeding is not a petition for instructions, where the petitioners stand indifferent as to which of the conflicting contentions of those interested in the estate shall prevail. Neither is it a petition of interpleader, where the petitioners are merely stakeholders. This petition seeks the interpretation of a will concerning a matter directly connected with the proper administration of a trust by the petitioners. They are bound to conserve the assets of the trust and to avoid unnecessary expenses. They are required to file accounts in the due performance of their duties. They are entitled to have their accounts settled by decrees binding all persons who are interested in the estate. If those who are to take the residue of the trust funds at the termination of the trust are the heirs at law of the testator at the time of his death, then the only persons interested in the allowance of the accounts are readily ascertainable and may easily be made parties to all proceedings relative to the allowance of the accounts; but if the heirs are to be determined as of the time of distribution of the trust funds, then the allowance of accounts will involve interests of persons unascertained or unborn and they should be represented by a guardian ad litem if decrees are to be properly entered upon the accounts. G.L.(Ter.Ed.) c. 206, § 24, as revised by St.1938, c. 154, § 1. Morse v. Hill, 136 Mass. 60;Collins v. Collins, 140 Mass. 502, 5 N.E. 632;Neafsey v. Chincholo, 225 Mass. 12, 113 N.E. 651;Jordan v. Turnbull, 242 Mass. 317, 136 N.E. 182;Waitt v. Harvey, 312 Mass. 384, 395, 396, 45 N.E.2d 1. Accordingly the petitioners have an interest in having determined the question whether the appointments of guardians ad litem are necessary for the allowance of successive accounts, in order that the decrees thereon may be lawfully entered and have the force and effect of ordinary decrees made by Probate Courts and that the trust estate may be saved the expenses of various guardians ad litem if their appointments are unnecessary. The question presented deals with the performance of a present duty arising out of the administration of the residuary trust by the petitioners, and they stand in such a relation to the subject matter that they have a right to appeal. Ripley v. Brown, 218 Mass. 33, 105 N.E. 637;Jordan v. Turnbull, 242 Mass. 317, 136 N.E. 182;Locke v. Old Colony Trust Co., 289 Mass. 245, 193 N.E. 892;Doane v. Bigelow, 293 Mass. 406, 200 N.E. 121;Warren v. Sears, 303 Mass. 578, 22 N.E.2d 406, 127 A.L.R. 595.

The widow released the power of appointment over the balance of the money that might remain in the residuary trust after the payments which were to be made upon the termination of the trust. G.L.(Ter.Ed.) c. 204, §§ 27-36, inclusive, inserted by St.1943, c. 152. She having given up her right to exercise the power, the question arises whether the interests in this balance of the trust became vested in those who were the testator's heirs at law at the time of his death, or whether the persons who are to take are those who will take under the statute of descent and distribution at the time fixed for the distribution. Since the answer to that question seems to us clear and there are advantages in a present decision, we think that in this case the discretion of the Probate Court was not improperly exercised by giving an answer.

It is a general rule that the heirs of a testator are to be determined as of the time of his death. It is the general rule that wills containing provisions for the distribution of property among the heirs of a testator upon the termination of legal or equitable life estates are to be construed as vesting interests in the heirs at the death of the testator. Gilman v. Congregational Home Missionary Society, 276 Mass. 580, 177 N.E. 621;Robertson v. Robertson, 313 Mass. 520, 48 N.E.2d 29;Tyler v. City Bank Farmers Trust Co., 314 Mass. 528, 50 N.E.2d 778;National Shawmut Bank v. Joy, 315 Mass. 457, 53 N.E.2d 113. But this rule is one of construction, which is to be followed only in so far as it aids in ascertaining the intent of the testator, and the rule must not be permitted to defeat the intent of a testator as...