Nexon v. Boston Safe Deposit & Trust Co.

• Decision Date: 08 July 1977
• Parties: Phillip J. NEXON, Trustee v. BOSTON SAFE DEPOSIT AND TRUST COMPANY, Trustee, et al. Appeals Court of Massachusetts, Suffolk
• Court: Appeals Court of Massachusetts

Page 1077

364 N.E.2d 1077

5 Mass.App.Ct. 493

Phillip J. NEXON, Trustee v. BOSTON SAFE DEPOSIT AND TRUST COMPANY, Trustee, et al.

Appeals Court of Massachusetts, Suffolk.

Argued April 19, 1977.

Decided July 8, 1977.

Phillip J. Nexon, pro se.

Alan L. Lewis, Boston, for Nettie Zides.

A. Bentley Kurtis, Quincy, for Bessie Kurtis and others.

Mary Joann Reedy, Asst. Atty. Gen., for the Attorney General.

John E. Rogerson and Jeffrey W. Lemkin, Boston, for Boston Safe Deposit and Trust Co.

Before KEVILLE, ARMSTRONG and BROWN, JJ.

KEVILLE, Judge.

This complaint for instructions was brought in a Probate Court by Phillip J. Nexon, surviving trustee of a trust under article III of the will of Phillip B. Bayes. The trustee, in support of the wishes of Nettie Zides, the life beneficiary and sister of the testator, seeks an instruction that he is empowered to distribute the entire principal of the trust to Nettie as assurance that the entire remainder of the trust will be available for the support of Nettie's husband, Abraham, should he survive her. The trustee represents that such assurance would give Nettie "greatest comfort and happiness," a phrase which he draws from the testator's directive with respect to the discretionary authority to invade principal for Nettie's benefit given to the trustee under article III. The probate judge ruled that the trustee was not empowered to pay the principal of the trust to Nettie for the benefit of Abraham in order to bring her "greatest comfort and happiness." We agree. Under the familiar rule, we turn to a consideration of the will as a whole to ascertain the testator's intent. Mazzola v. Myers, 363 Mass. 625, 634, 296 N.E.2d 481 (1973). Putnam v. Putnam, 366 Mass. 261, 266, 316 N.E.2d 729 (1974).

Article III provides that the net income of the trust shall be paid monthly, or more often as the trustees may determine, to Nettie during her lifetime. In addition, the trustees are directed to pay to Nettie at the end of each year the amount, if any, by which $5,200 exceeds amounts paid to her during the year. They are also authorized to pay her during her lifetime, "at any time and from time to time, and for any purpose, any part or the whole of the then principal of the Trust . . . as they, in their sole discretion, shall determine to be necessary or advisable for her support, maintenance and greatest comfort and happiness " (emphasis supplied). The testator then expressed his intention that the trustee's discretion be exercised "generously," with an eye to "increases from time to time in the cost of living." However, he included an additional directive, largely discounted in the arguments of Nettie and the trustee, that "payments of principal to said Nettie Zides (be made) solely with regard to her interests and needs, and without any regard whatever to the prospective interests of those hereafter named as remaindermen " (emphasis supplied). Article III goes on to provide that Abraham shall, if he survives Nettie, receive the lesser of $10,000 or one-half the remainder. At the time this complaint was brought Nettie was sixty-seven years of age and in ill health and Abraham sixty-six years of age and in relatively good health.

In our view the language employed by the testator in ...