Normandie v. Zwinge

• Decision Date: 01 March 1926
• Citation: 151 N.E. 93,255 Mass. 214
• Parties: DE NORMANDIE v. ZWINGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 214

151 N.E. 93

DE NORMANDIE

v.ZWINGE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 1, 1926.

Appeal from Probate Court, Middlesex County; John C. Leggatt, Judge.

Petition by Charles L. De Normandie, Tr., against Henry Zwinge, an absentee, and others for order to transfer a trust fund established by the will of Eliza T. McGinness to trustees entitled thereto. From an adverse decree, one of the parties appeals. Affirmed.

F. G. Goodale, of Boston, for petitioners.

A. Mehlinger, of Boston, for respondent Murray.

G. A. Furness, of Boston, for respondents Giblin and others.

PIERCE, J.

This is an appeal from a decision of the probate court for the county of Middlesex, upon a petition filed under G. L. c. 203, §§ 26 to 39, inclusive, praying under section 27 that the petitioner be ordered to transfer a trust fund to these persons as trustees who would be entitled thereto if one Henry L. Zwinge, an absentee beneficiary, had died intestate within the commonwealth on the day fourteen years after the date of his disappearance, in the proportions to which each would be entitled. The issue before this court is whether the appellant is entitled to share in the distribution of one fifth of the principal of a trust fund, with accumulations, theretofore set apart as the share of the absentee (Henry L. Zwinge) pending the establishment of his rights thereto, or the rights of his estate if he died after the principal of the trust vested, or the rights of the then surviving beneficiaries or their estate if he died prior thereto.

The absentee disappeared in January, 1907. Such disappearance has been continuous for more than fourteen years last preceding the filing of the petition; and he has not been heard from or known of within such fourteen years. No question is raised as to a compliance with all the requirements of the statute regarding notice and other steps designed for the protection of the possible rights of the absentee. Nor is it disputed that the facts warrant a presumption of his death.

The pertinent facts other than as above stated are as follows: Eliza T. McGinness died about January 1, 1911, leaving a will which was duly proved and allowed in the probate court. The will created a trust fund to be held by the petitioners and the income paid over to specified nieces and nephews of the testatrix, including the absentee, until the youngest attained the age of twenty-one years, when the trust should terminate and the fund be paid over equally to the named beneficiaries then living, the issue of any deceased beneficiary to take by right of representation. The youngest beneficiary, Arthur L. Zwinge, attained the age of twenty-one years on November 9, 1918. The beneficiaries then entitled to receive the trust fund were the absentee, if living, his sister Eva Zwinge Giblin, and his brothers, Arthur L. Zwinge and Albert Basil Zwinge, children of a deceased nephew of the testatrix, and Conrad J. Zwinge, child of another nephew of the testatrix, under whom the appellant claims. On the coming of age of Arthur L. Zwinge the petitioner set aside one-fifth of the fund as the absentee's share, and has continued to hold it as trustee. The remaining four-fifths of the fund he distribute under the terms of the will to the other nieces and nephews of the testatrix, including Conrad J. Zwinge.

The judge of probate having before him no evidence beyond that of the mere fact of the absentee's disappearance in 1907, assumed his death to have occurred on the day fourteen years after his disappearance, and ordered distribution of the remaining fund to the absentee's sister and two brothers, as being property left by the absentee upon his death intestate. This result excluded the appellant, who was not next of kin of the absentee, but whose rights, if any, rest upon the failure of the fund to vest in the absentee at all. It is conceded by the appellant that the statute is constitutional, Adams v. Adams, 97 N. E. 982, 211 Mass. 198, and it is not disputed that the three distributees named in the decree are the rightful distributees to the exclusion of the appellant if the absentee was alive on said November 9, 1918. It is the contention of the appellant that, if the absentee on November 9, 1918, was actually or presumptively dead, the fund held under the terms of the trust and in accordance with the statute should be distributed in four equal shares as the shares of the four surviving beneficiaries, and should go to the three distributees named in the decree, as three of these four, and to the appellant as the representative of the fourth; and that the fund set apart would thus not be the absentee's share, properly so called, but would be the...