National Shawmut Bank of Boston v. Cumming

• Decision Date: 08 March 1950
• Citation: 91 N.E.2d 337,325 Mass. 457
• Parties: NATIONAL SHAWMUT BANK OF BOSTON v. CUMMING et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 457

91 N.E.2d 337

NATIONAL SHAWMUT BANK OF BOSTON v. CUMMING et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 8, 1950

Argued Jan. 3 1950.

G J. Monti, Barre, Vt. (C. H. Amon, Jr. and C. K. Hurley Boston, with him) for appellant.

R. G. Dodge, Boston (J. A. Perkins, Boston, with him), for plaintiff.

Before QUA, C. J and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.

WILKINS, Justice.

The plaintiff bank is the surviving trustee under a declaration of trust, dated August 25, 1944, in which the bank and the settlor, William Gray Cumming, of Barre, Vermont, were named as trustees. The settlor died on August 19, 1947. The defendants are the settlor's widow, Cora Mann Cumming, and the mother brother, and three sisters of the settlor, and constitute all the surviving life beneficiaries under the trust instrument. This bill in equity seeks (1) the removal of a cloud upon the plaintiff's title as trustee to the trust property, as well as upon the beneficial interests of the defendants, the said cloud consisting of a claim asserted by the widow that the trust is invalid: and (2) a binding declaration of the rights of the parties under the trust instrument. G.L. (Ter.Ed.) c. 231A., inserted by St.1945, c. 582, § 1. The answers of the defendants other than the widow admit the allegations of the bill and join in the prayers for relief. The widow's answer sets up that the trust was created in bad faith with intent to defraud her of rights under Vermont law after waiver of the will, and that the validity of the trust is to be determined by the laws of the State of Vermont. The widow (hereinafter called the defendant) appealed from a final decree adjudging that the trust is valid, and that she has no claim to the trust property except as a beneficiary under the trust instrument. The judge filed 'Findings, ruling and order for decree.' The evidence is reported.

We summarize certain facts found by the judge or by ourselves.

The trust agreement provided that the income, and such amounts of the principal as the settlor might direct in writing, should be paid to him for life; and that after his death the income should be paid equally to his widow, his mother, two brothers (one of whom predeceased him), and three sisters, the principal, if necessary, to be used to insure the receipt of $150 monthly by each beneficiary. Upon the death of the settlor and the last survivor of the life beneficiaries, the trust was to terminate and distribution be made to the nieces and nephews of the settlor then living and to the living issue of each deceased niece or nephew by right of representation. The settlor reserved the power to amend, to revoke in whole or in part, and to withdraw principal. The last paragraph reads, 'This instrument shall be construed and the provisions thereof interpreted under and in accordance with the laws of the Commonwealth of Massachusetts.' Extensive powers of management were reserved to the trustees, but by an amendment of September 26, 1945, the settlor 'delegated' his powers as cotrustee to the plaintiff.

The settlor died domiciled in Vermont at the age of fifty-seven. On January 5, 1925, when in Florida, he married the defendant. It was his first marriage. She was 'several years' his senior and a widow with three children. The settlor, who until then had lived with his mother, was an eldest son who had assumed the obligations of the head of the family. He took these obligations very seriously, and strong family ties continued throughout his life. His business energies were devoted to the Granite City Tool Company, Inc., in Barre, which he had organized. It had a branch in Georgia and one in Minnesota, each in charge of a brother.

In the summer of 1944 the settlor had accumulated a 'sizable amount' of cash and government bonds, which he kept in Vermont. He was solicited by an employee of the plaintiff, with which his company had an account, to use its facilities as trustee, and went to its offices in Boston, and made arrangements for the creation of the trust. The attorney of the plaintiff drew the trust instrument, which the settlor signed in Vermont on August 25, 1944, and caused to be sent to the plaintiff in Boston, where it was executed by the plaintiff on August 26. The annexed schedule of trust property listed a check for $50,000 of a Barre bank, drawn on a Boston bank and payable to the plaintiff, and $50,000 in Canadian government and United States Treasury bonds. The check had been given to the plaintiff by the settlor on August 16, and the bonds had been sent by the Barre bank, and received by the plaintiff on August 19. Later, on five occasions between March 9, 1945, August 29, 1945, the settlor delivered or sent, or caused to be sent, to the plaintiff bonds or checks in the total amount of $100,595.25, to be added to the principal. These transfers to the trust were the greater part of his property. On November 12, 1946, there was a withdrawal of $27,000.

The settlor and the defendant 'had not gotten along well,' and the 'rupture became more pronounced in December, 1944, when being quite a sick man physically he made plans to go to Florida for his health, [and] he asked his wife to go with him, but her daughter was sick, and she remained home to take care of her.' He returned from Florida on February 15, 1945, lived with her for a brief time in Barre, and about March 1, ceased to do so. In 1946 she brought a petition for a 'divorce from bed and board forever,' and in 1947 he asked her 'to let him have a full divorce.'

The judge stated: 'I find that the settlor meticulously and designedly arranged his holdings and his business affairs so that his mother, wife, brothers and sisters would share the income, or principal, if necessary, equally after his death. That he knew that but for this arrangement his widow would have been entitled under the laws of Vermont to $4,000 and one half of his estate. But I do not find that in doing what he did * * * he was actuated by bad faith, or that he sought to accomplish something which he under all the circumstances considered to be unjust or unfair to his wife. I do not find that he set up the trust with the fraudulent intent of preventing his wife from obtaining her distributive share of his property. I find and rule that the trust is valid. I find that the settlor intended that the trust be administered in Boston by the National Shawmut Bank as trustee.'

Contrary to the defendant's contention, the statements prefaced 'I do not find' or 'I find and rule' are neither inferences of fact drawn from basic facts nor conclusions of law. Kerwin v. Donaghy, 317 Mass. 559, 565, 59 N.E.2d 299. Those prefaced 'I do not find,' We take to mean that the burden of establishing the recited facts has not been sustained. Uccello v. Gold'n Foods, Inc., 325 Mass. 319, 90 N.E.2d 530. The words 'find and rule,' the use of which usually imposes the burden of some elucidation upon this court, do not import that the conclusion stated is required as matter of law, but import rather that such conclusion is permissible as matter of law and is found as matter of fact. Roney's Case, 316 Mass. 732, 734, 56 N.E.2d 859; Druzik v. Board of Health of Haverhill, 324 Mass. 129, 137, 85 N.E.2d 232.

If the settlor had been domiciled in this Commonwealth and had transferred here personal property here to a trustee here for administration here, the transfer would have been valid even if his sole purpose had been to deprive his wife of any portion of it. Redman v. Churchill, 230 Mass. 415, 418, 119 N.E. 953; Eaton v. Eaton, 233 Mass. 351, 370, 124 N.E. 37, 5 A.L.R. 1426; Kerwin v. Donaghy, 317 Mass. 559, 571, 59 N.E.2d 299. The Vermont law we understand to be otherwise and to invalidate a transfer made there by one domiciled there of personal property there, if made with an actual, as distinguished from an implied, fraudulent intent to disinherit his spouse. See Thayer v. Thayer, 14 Vt. 107, 39 Am.Dec. 211; Green v. Adams, 59 Vt. 602, 10 A. 742, 59 Am.Rep. 761; Dunnett v. Shields & Conant, 97 Vt. 419, 428, 123 A. 626; Patch v. Squires, 105 Vt. 405, 165 A. 919; In re O'Rourke's Estate, 106 Vt. 327, 331, 175 A. 4.

The plaintiff contends that the validity of the trust is to be determined by the law of this Commonwealth, and, in the alternative that should the question be determined by Vermont law, the trust would still be valid on the judge's findings. The defendant, on the other hand, contends that the 'trust is not valid under either Vermont or Massachusetts law.' This argument is founded upon alleged illegality according to the law of Vermont and an assertion that our courts must look to the law of the State of domicil, which determines the right of succession to the settlor's personal property here. Reliance is placed upon Ross v. Ross, 129 Mass. 243, 245, 37 Am.Rep. 321,...