Mckenzie v. Ashley

• Decision Date: 07 January 1888
• Citation: 15 N.E. 88,145 Mass. 577
• Parties: MCKENZIE v. ASHLEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 577

15 N.E. 88

MCKENZIE v. ASHLEY et al.

Supreme Judicial Court of Massachusetts, Hampden.

January 7, 1888

COUNSEL

H.B. Stevens, for defendant Mrs. Ashley.

The bill for instructions is maintainable by the executor by reason (1) of the fiduciary relation he holds to the respondents, especially Mariah Ashley. Dorr v Wainwright, 13 Pick. 328. (2) The principal requisites for maintaining such bill are the fiduciary possession of a fund of which some disposition is required to be made presently; conflicting claims, or the probability that such may arise; no adequate means of determining them otherwise so as effectually to protect the trustee from the risks of future liability or controversy. Putnam v Collamore, 109 Mass. 509. The evidence that "Hascall intended that the widow should purchase a house, and expressed his approval of this purchase in a conversation before the instrument was made by him," was admissible. Stoops v. Smith, 100 Mass. 63, 66, and cases cited. It is immaterial how much property Mrs. Ashley may have of her own, not derived from this trust-estate, since she is entitled, by the express terms of the will, to a good and comfortable support out of the testator's estate.

Maynard & Spellman, for defendants Elizabeth P. Cooley, S.E. Hascall, and M. Ellen Hascall.

The only legal perplexity or doubt of plaintiff is, has the $2,500 authorized by Hascall, the remainder-man, to be appropriated for the "comfort and comfortable support" of the widow, been exhausted, within the true intent and meaning of the order authorizing the same? If it has not, then there are funds in his hands, so that he has no need to call upon the remaining principal. If they have been so exhausted, then his instructions given in the will are a full and plain guide, as the case finds that the income is insufficient for the widow's support. The only perplexity or difficulty to the executor is, how much of the principal will be necessary to even up the income to the standard fixed by the will? A decree of this court can be of no benefit or guide to him in this respect, as no decree of to-day would be of any service for the varying exigency of to-morrow. Even if it were, there is no data in the report from which to make a decree. The case finds a large part of the $2,500 still in the widow's hands, in the shape of real estate in her own name, and entirely subject to her control. There is no claim that it is not immediately available for any purpose she may desire. The investing of the sum in real estate by the widow, in her own name, was not a using of the same for the "comfort and comfortable support" of the widow, within the fair meaning of the written authority to appropriate. The word "comfort" must be construed reasonably. If she might use it to buy a house, because she thought the ownership of a house would add to her comfort, the same reasoning would allow her to keep it intact in her pocket or in the savings bank, or to make a present of it to her friends, if she should happen to think either method would add to her comfort. The evidence contained in the conversation in regard to the purchase of a house was inadmissible, and cannot be used to modify the terms or explain the meaning of the written authority. The whole authority to appropriate is contained in the writing, and the money must be used for the specific purposes therein named.

OPINION

KNOWLTON J.

The respondent Mariah Ashley was entitled, under the will of her husband, to the income for life of the residue of his estate after the payment of two legacies to herself, and also to so much of the principal as should be necessary to give her a good and comfortable support. After her death, Frederick Alderman, one of the defendants, is to be paid $100 from what is left, and the remainder is to be given to the representatives of Joseph B. Hascall, a legatee, who has deceased since the death of the testator. The income is now insufficient for the support of Mariah Ashley, and the petitioner should provide for her from the principal, unless the whole or a part of $2,500 paid her in 1871 is first to be used for that purpose. With this sum paid her, and with $1,100 of her own money, she bought at that time a house for her home, and has occupied it ever since. The only question in the case is whether she must dispose of that house, or of some...