Moore v. Cannon

• Decision Date: 05 June 1964
• Citation: 199 N.E.2d 312,347 Mass. 594
• Parties: Paul F. MOORE et al., Trustees, v. Louise H. CANNON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 312

199 N.E.2d 312

347 Mass. 594

Paul F. MOORE et al., Trustees, v. Louise H. CANNON et al.

Supreme Judicial Court of Massachusetts, Hampden.

Argued May 5, 1964.

Decided June 5, 1964.

Edwin H. Lyman, Jr., Springfield, for petitioners.

Frederick A. Stebbins, Springfield, for respondents Honoria P. Moore and another.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

CUTTER, Justice.

The trustees under par. Fourth of the will of Frank L. Moore (the testator) seek declaratory relief concerning the distribution of the trust corpus upon the death (on July 2, 1961) of Mabel B. Moore, the testator's widow. The case was presented upon the pleadings and a statement of agreed facts. The probate judge has reported the case to this court without decision.

The testator, at a time when his domicil was in New York, executed his will on January 20, 1925. He thereafter moved to Massachusetts where he died on January 6, 1926. His will was admitted to probate in Hampden County. When his will was made and at his death the testator owned 9,700 of 10,000 outstanding shares of Westfield River Paper Company, Inc. (Westfield). These shares constituted the bulk of his estate.

By par. Fourth of his will, the testator gave the residue of his estate in trust to pay the income principally to his wife, during her life. By par. Sixth, the testator directed that at the death of his wife, there be set up (subject to the provisions of par. Seventh) a trust for each then surviving child of the testator. The whole corpus of each such trust was to have been paid to the child by the time he had reached age thirty. Paragraph Seventh reads, 'In the event of the death of any of my * * * children prior to the death of my * * * wife, [A] leaving a wife or husband or issue of him or her surviving, and surviving my said wife, I hereby direct my * * * trustee upon the death of my * * * wife to * * * pay over the part of my estate which would have gone to such child * * * had he or she survived my * * * wife and lived to the age of thirty years, [B] to those who would have been entitled to receive such part of my * * * estate had such child died intestate vested with the title thereto' (emphasis supplied). ¹

In par. Fourth the testator directed that the trustees, if they should decide to sell any shares of Westfield, should 'give to such of my heirs as may be actively interested in the management' of Westfield a ninety day option to purchase the shares at the trustees' appraisal of their value upon condition that the 'purchasing heirs' agree to give a similar option to 'any other of my heirs who may be so actively interested * * * before selling to outside interests' (emphasis supplied).

The testator left his widow and four children surviving him. At the widow's death on July 2, 1961, Paul Moore, one of the children, was still living and above the age of thirty. A daughter and a son each died before the testator's widow's death, each leaving no surviving husband or wife but leaving two children (by blood and not by adoption) all of whom are still alive. Donald Moore, a son of the testator, died on March 17, 1943, leaving his widow, Honoria, and also an adopted son, John Michael, both of whom are still living. It is conceded that Paul Moore now takes one quarter of the trust estate and that the testator's four grandchildren by blood (the children of his deceased daughter and a deceased son) each take one eighth of the trust estate. The primary issue is whether John Michael Moore, adopted in Massachusetts by the testator's son Donald on April 12, 1938, more than twelve years after the testator's death in 1926, can share in the trust corpus by virtue of the provisions of par. Seventh, already quoted.

1. The validity and effect of the will and trust are to be determined by the law of Massachusetts where the testator had his domicil at his death, and the will is to be construed in accordance with that law, except as an actual contrary intention of the testator may be ascertained by usual methods of interpretation. See Second Bank-State St. Trust Co. v. Weston, 342 Mass. 630, 635-636, 174 N.E.2d 763; Restatement 2d: Conflict of Laws (Tent. draft No. 5, April 24, 1959), §§ 306, 308. Paragraph Seventh obviously refers (see the italicized language following point [B] quoted above) to the statute governing the intestate distribution of Donald Moore's estate. Since Donald died, with his domicil in Massachusetts, ² on March 17, 1943, the statutes referred to are the Massachusetts statutes relating to intestacy. See G.L. c. 190, §§ 1 (prior to its amendment by St.1945, c. 238), 2, and 3, as in force in 1943, and c. 210, § 7. ³ We perceive no indication of any actual intention on the part of the testator that his will be interpreted by the law of any State other than that of his domicil.

2. The express condition (see words following point [A]) upon which the application of par. Seventh depends has occurred. Donald Moore, a child of the testator, did die 'prior to the death of * * * [the testator's] wife, leaving a wife * * * or issue of him * * * surviving, and surviving * * * [the testator's] wife.' The words 'wife * * * or issue,' of course, have some tendency to show that, in framing par. Seventh, the draftsman had in mind the probability that a wife or issue of the testator's deceased son would take by intestacy the son's share, but the dispositive words (following point [B]) do not confine the gift under par. Seventh to a deceased child's wife and issue. No such restriction should be implied.

The will used the word 'issue' in the condition in par. Seventh and the word 'heirs' in the provisions of par. Fourth concerning the sale of the Westfield stock. If either of these terms, which have some tendency to imply a blood relationship, had been used in the dispositive portion of par. Seventh, then there would be a more definite basis for saying that the rule of construction, contained in the pre-1958 form of G.L. c. 210, § 8 (see fn. 3, supra), would prevent Donald's adopted son, John Michael Moore, from sharing in the one fourth of the trust corpus which Donald would have taken if he had survived his mother and had attained age thirty.

The testator used, however, different terms (see point [B]), to designate the ultimate recipients of that part of the trust corpus, viz. 'to those who would have been entitled to receive such [one-fourth] part * * * had such child died intestate vested with the title thereto.' The question for decision is whether this form of expression makes it unnecessary to apply the pre-1958 rule of construction set out in old § 8.

In effect the testator has designated as distributees those persons who would have taken the trust property by intestate succession if Donald himself had owned the property directly. This is a designation of the statutory 'heirs' of Donald, a term which includes John Michael. The language indicates to us the testator's intention that, upon the occurrence of the condition, Donald's share of the trust property was to be dealt with essentially as Donald's own property, which the testator should have realized might pass to later adopted children of Donald. As a matter of interpretation of the testamentary language, we hold that the same persons, including Donald's adopted son, take Donald's share of the corpus as would have taken Donald's own property by intestacy.

We have been referred to no Massachusetts case which deals with precisely this question. The terms 'issue,' 'heirs,' and 'children,' under the pre-1...