McKay v. Audubon Soc.

• Decision Date: 03 July 1945
• Citation: 318 Mass. 482,62 N.E.2d 117
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: JOHN A. MCKAY & another, trustees, v. AUDUBON SOCIETY, INC., & others.

318 Mass. 482

62 N.E.2d 117

JOHN A. MCKAY & another, trustees, v. AUDUBON SOCIETY, INC., & others.

Supreme Judicial Court of Massachusetts, Middlesex.

July 3, 1945

May 10, 1945.

Present: FIELD, C.

J., LUMMUS, QUA RONAN, & WILKINS, JJ.

Probate Court Appeal, Suit for interpretation of instrument. Equity Pleading and Practice, Appeal, Suit for interpretation of instrument. Devise and Legacy, Heirs at law, Remainder, Time of vesting. Trust, Distribution. A trustee under a will petitioning the Probate Court in equity under G. L.

(Ter. Ed.) c. 215 Section 6B, inserted by St. 1935, c. 247, Section 1, for an interpretation of the will as to the persons who would be entitled to certain trust property in distribution at the termination of the trust in the future, was entitled to appeal from the decree entered on the petition where such interpretation determined the question whether appointments of guardians ad litem would be necessary for the proper settlement of the trustee's accounts and therefore involved a present duty of the trustee in the administration of the trust.

A testator, who left no issue and who in his will, after providing for his wife by outright gifts and a life interest in a residuary trust, provided that upon termination of the trust at her death certain of the trust property, in default of appointment by her, should go "as though I died at the time of distribution intestate as to this property," intended that the persons entitled to such property under the quoted provision should be his heirs ascertained as of the time of the termination of the trust and not as of the time of his death.

Under a will establishing a trust for the testator's niece for life, with provisions that "only after . . . [her] death" should the trust property be distributed to and become a part of a residuary trust established for the benefit of the testator's widow for life and to be distributed at her death, the class of persons entitled to share in the distribution of the entire residuary trust, including the property of the niece's trust, should be determined as of the time of the widow's death, whether or not she survived the niece; but in the event that the widow predeceased the niece, a partial distribution of the residuary trust consisting of the property held therein at the time of the widow's death should then be made to persons so determined, and final distribution consisting of the property of the niece's trust should be made to the same persons at the niece's death.

PETITION, filed in the Probate Court for the county of Middlesex on January 18, 1944.

The case was heard by Monahan, J., who entered a decree "that said heirs at law are to be determined as of the time of the death of the life tenant, said Marguerite A. Blank, when the trust shall terminate and distribution be made under G. L. (Ter. Ed.) c. 190." The petitioners appealed.

J. M. Joslin, for the petitioners. G. F. McKelleget permitted to file a brief as next friend.

RONAN, J. This is an appeal from a final decree entered upon a petition in equity under G. L. (Ter. Ed.) c. 215, Section 6B, inserted by St. 1935, c. 247, Section 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 residuary trust 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 by 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, Section 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 . Weston v. Fuller, 297 Mass. 545 . Bolster v. Attorney General, 306 Mass. 387, 389. Ballard v. Maguire, 317 Mass. 130 . 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, Section 24, as revised by St. 1938, c. 154, Section 1. Morse v. Hill, 136 Mass. 60 . Collins v. Collins, 140 Mass. 502 . Neafsey v. Chincholo, 225 Mass. 12 . Jordan v. Turnbull, 242 Mass. 317 . Waitt v. Harvey, 312 Mass. 384 , 395-396. 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. Jordan v. Turnbull, 242 Mass. 317 . Locke v. Old Colony Trust Co. 289 Mass. 245 . Doane v. Bigelow, 293 Mass. 406 . Warren v. Sears, 303 Mass. 578.

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, Sections 27-36, inclusive, inserted by St. 1943, c. 152. She having given up her right to exercise the power,...