Nat'l Shawmut Bank of Boston v. Morey

• Decision Date: 03 December 1946
• Citation: 70 N.E.2d 316,320 Mass. 492
• Parties: NATIONAL SHAWMUT BANK OF BOSTON et al. v. MOREY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

320 Mass. 492

70 N.E.2d 316

NATIONAL SHAWMUT BANK OF BOSTON et al.

v.MOREY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 3, 1946.

Suit in equity by the National Shawmut Bank of Boston and another, trustees under residuary clauses of the will of Edwin Morey, deceased, against Adda Louise Morey and others for a declaratory judgment interpreting will. The defendants filed a counterclaim. From the decree, the petitioners and various respondents appeal.

Affirmed as modified.Appeal from Probate Court, Suffolk County; Dillon, Judge.

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

H. S. Davis, of Boston, for National Shawmut Bank, exec. as Trustee under will of Walter G. Morey.

R. M. Robinson and A. P. Schmidt, both of Boston, for trustees under will of Edwin Morey.

M. A. Shattuck, of Boston, and S. MacMillan, both of Boston, for Richard T. Morey, Charlotte A. Stevens, Jeannette M. Collins, and Virginia Morey, respondents.

C. S. Chaplin, of Portland, Me., F. D. Marshall, of Portland, Me., for Ella L. Morey, individually and as executrix.

A. W. Wunderly, of Boston, for guardian ad litem.

QUA, Justice.

This petition in equity is brought under section 6 B inserted in G.L. (Ter.Ed.) c. 215, by St.1935, c. 247, § 1, by the trustees under residuary clauses of the will of Edwin Morey, of Boston, who died September 21, 1907, for a declaratory judgment interpreting that part of the will which provides that at the decease of the last survivor of a number of life beneficiaries the trustees shall pay over ‘the then remaining sum of the said trust’ in part of a certain charity and the balance to the testator's ‘heirs at law.’

The question which the petitioners in their petition and most, but not all, of the respondents in their answers ask the court to decide is the timeworn question whether ‘heirs' meant those who were such at the death of the testator or those who would be such if he died immediately after the death of the last surviving life beneficiary-in other words, whether the remainder interests in the trust are vested or contingent.

The peculiarity of this case is that the time for distribution has not yet arrived, since two of the life beneficiaries, the testator's widow now eighty-five years of age and a grandson now fifty-eight years of age, are still living. Many years may yet elapse before the remainders become distributable. It is for this reason, no doubt, and because the courts ordinarily refuse under their general equity jurisdiction to give instructions to fiduciaries as to possible future duties which they are not presently required to perform that the petitioning trustees rely upon the statute to secure a declaration as to the nature of the remainder interests. See Bullard v. Attorney General, 153 Mass. 249, 250, 26 N.E. 691;Hill v. Moors, 224 Mass. 163, 165, 112 N.E. 641;North Adams National Bank v. Commissioner of Corporations and Taxation, 268 Mass. 42, 45, 46, 167 N.E. 294;Boyden v. Stevens, 285 Mass. 176, 180, 188 N.E. 741;Wellesley College v. Attorney General, 313 Mass. 722, 729, 49 N.E.2d 220.

Some of the respondents in their answers raise a second question. The will provides that in case the income from the trust fund shall be more than sufficient to pay specified sums to life beneficiaries, so that a balance of income remains at the end of any year, the trustees shall pay ninety per cent of such balance to certain beneficiaries until the deaths of all the named beneficiaries, when the trust shall cease and the trustees shall pay over ‘the then remaining sum of the said trust’ as hereinbefore stated. In many years the income of the fund has been more than sufficient to pay to life beneficiaries the particular sums specified, and ninety per cent of the balance has been paid according to the will. The remaining ten per cent of the balance of income, amounting to many thousands of dollars, for the payment of which during the continuance of the trust the will makes no express provision, has been retained by the trustees and added to the principal. The respondents just mentioned contend that this remaining ten per cent of income was intestate property, and that it should have been paid to the testator's heirs instead of being retained in the trust.

The Probate Court entered a decree wherein it declined, in the exercise of its discretion, to pass upon the question as to which the petitioners sought a declaratory judgment or decree, and wherein it further decreed that the issue as to the disposition of the ten per cent of the balance of income ‘is res judicata’ because of the former allowance, after hearing and adjudication, of accounts of the trustees, all showing the transfer of this undistributed income to the principal of the trust. The petitioners and various respondents appeal. The record includes a report of the evidence.

We interpret the decree as a final decree (1) refusing on discretionary ground to make a declaratory decree as to the nature of the remainder interests under the trust and (2) deciding that, because of previous adjudications on trustees' accounts, the ten per cent of the balance of income in question has already been determined to have remained part of the fund and not to have become distributable as intestate property. We reach this conclusion upon consideration of the substance of the decree and in spite of the fact that the decree purports to reserve for future consideration ‘the matter of the allowance of costs and expenses to be paid out of the trust estate as prayed for by the several respondents.’ See Lucas v. Morse, 139 Mass. 59, 29 N.E. 223;Mulloney v. Barnes, 266 Mass. 50, 53, 54, 164 N.E. 917;Untersee v. Untersee, 299 Mass. 417, 424, 13 N.E.2d 29;Potter v. Mullaney, 301 Mass. 497, 499, 500, 17 N.E.2d 691.

1. We deal first with that part of the decree refusing to declare whether the rights of distributees of the remainder in the trust fund are vested or contingent.

There is no doubt in our minds that the Probate Court had jurisdiction to make the declaration. There are in some decisions of this court statements or intimations to the effect that in general equity jurisprudence the court has no jurisdiction to enter a merely declaratory decree upon which no further relief is granted. Austin v. Bailey, 163 Mass. 270, 39 N.E. 1022;Hanson v. Griswold, 221 Mass. 228, 234, 108 N.E. 1035;Hill v. Moors, 224 Mass. 163, 112 N.E. 641;Whiteside v. Merchants National Bank, 284 Mass. 165, 170, 187 N.E. 706. However, in Corkum v. Clark, 263 Mass. 378, 390, 161 N.E. 912, purely declaratory relief as to the matrimonial status of the plaintiff was granted in very special circumstances without the aid of any statute, and something of a more or less similar nature was done in Baylies v. Payson, 5 Allen, 473, 489, 490. In other jurisdictions the view has been taken that there is no lack of equity jurisdiction to grant purely declaratory relief, and that the refusal of courts to grant it is due to established views of expediency and not to lack of power. See AEtna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Guaranty Trust Co. v. Ranney & Co. [1915] 2 K.B. 536, 557-574. Whatever may be the power of an equity court in the absence of statute, it is plain that section 6B, under which this suit is brought, conferred plenary power upon the Probate Court. See Merchants Mutual Casualty Co. v. Leone, 298 Mass. 96, 99, 9 N.E.2d 552. That section reads in part, ‘A suit in equity in a probate court shall not be open to objection on the ground that a mere judgment, order or decree interpreting a written instrument or written instruments is sought thereby and in such a suit said court may make binding determinations of right interpreting the same, whether any consequential relief is or could be claimed or not.’ This section was repealed by St.1945, c. 582, § 3, and in common with other statutory provisions respecting declaratory judgments in other courts, has been super seded by the more comprehensive provisions of G.L. (Ter.Ed.) c. 231A, inserted by St.1945, c. 582, § 1. But by a saving clause in the repealing act, section 6B continues in force as to proceedings commenced, as the present proceeding was, before November 1, 1945. This statute is constitutional when properly applied to appropriate cases. Whiteside v. Merchants' National Bank, 284 Mass. 165, 187 N.E. 706. It should be construed liberally, as we are expressly enjoined to construe the successor statute. G.L.(Ter.Ed.) c. 231A, § 9, as inserted by St.1945, c. 582, § 1. It extends to the interpretation of wills and contains no express limitations as to the kinds of questions on interpretation of wills which may be determined under it. Indeed, interpretation of wills has been from the beginning of the development of declaratory jurisdiction one of the principal fields in which that jurisdiction has operated. See Borchard, Declaratory Judgments (2d ed.) 699 et seq.; Anderson, Declaratory Judgments, s. 291; McKay v. Audubon Society, Inc., 318 Mass. 482, 62 N.E.2d 117.

But although the Probate Court had jurisdiction in this case to declare the nature of the future interests under Edwin Morey's will, even long before those interests should come into possession, it does not follow that the petitioners were entitled to a decree as a matter of right. Generally, in declaratory procedure, whether originating in a statute or developed by the courts, there is expressly or by implication reserved to the court power in its discretion to decline purely declaratory relief. Section 6B, under which this proceeding is brought expressly recognizes this reservation. So also do the rules of this court and of the Superior Court promulgated in accordance with G.L.(Ter. Ed) c. 213, § 3, Tenth A. Equity Rule 36, adopted February 1, 1943, 313 Mass. 787. Rule 101 of the Superior Court (1932). Merchants Mutual Casualty Co. v. Leone, 298 Mass. 96, 99, 9 N.E.2d 552. A...