North Adams Nat. Bank v. Comm'r of Corp.
| Decision Date | 29 June 1929 |
| Citation | 268 Mass. 42,167 N.E. 294 |
| Parties | NORTH ADAMS NAT. BANK v. COMMISSIONER OF CORPORATIONS AND TAXATION et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Petition for instructions by the North Adams National Bank, trustee under the will of Frank Curtiss, against the Commissioner of Corporations and Taxation and others. Decree in accordance with opinion.
C. T. Phelps, of North Adams, and J. A. Haughwout and E. J. Esselstyn, both of New York City, for Everett Esselstyn.
J. F. Noxon, Jr., of Pittsfield, pro se.
S. H. Pillsbury and F. S. Moulton, both of Boston, and G. A. Black and C. Turner, for Francis S. Moulton and others.
This is a petition for instructions by the sole surviving trustee under the twenty-third clause of the will of Frank Curtiss, who died in Berkshire county on February 4, 1918. By this clause the testator provided that the residue of his estate should be held in trust, the income to be paid to his daughter, Sophia Curtiss, for life, with directions to the trustees in the following language: ‘If my said daughter shall die without leaving issue her surviving, then to pay over the principal of said trust fund with any accumulations then thereon to her nephews and nieces and to the issue of any of her nephews and nieces who may have predeceased her in such shares, estates and proportions and upon such terms, conditions and limitations as my said daughter shall by her last Will and Testament duly executed legally direct, limit and appoint and in default of such legal direction, limitation and appointment then to her nephews and nieces and to the issue of any of her nephews and nieces who may have predeceased her in equal shares, per stirpes and not per capita.’
Sophia Curtiss died September 24, 1928, without leaving issue surviving. By the eighth clause of her will, duly probated, after reciting portions of the provisions of article twenty-third of her father's will, she divided the part of her father's estate left in trust for her into four equal shares, one share to be held in trust for each of her four living nephews. The directions in the provision for Franklin Curtiss were ‘(a) to invest safely, reinvest and to keep the same invested safely, to collect the interest and income arising therefrom, and to pay over such net interest and income, semi-annually or quarter-yearly, to and for the use of my nephew, Franklin Curtiss, during the term of his natural life, and (b) upon his death to pay over the principal of said trust fund with any accumulations then thereon in equal shares to his brothers, Roy A. Curtiss, Jr., Thomas Quinn Curtiss and Sidney Q. Curtiss, or to such or them as may be living at the time of his (Franklin's) death, and to the issue of any of them who may have predeceased him (Franklin) per stirpes and not per capita; but (c) if my said nephew, Franklin Curtiss, shall have predeceased me leaving issue me surviving, then, upon my death, to pay over, deliver and distribute the principal of said trust fund to such issue in equal parts, per stirpes and not per capita; but (d) if my said nephew, Franklin Curtiss, shall have predeceased me without leaving any issue him surviving, the principal which otherwise would have composed said trust fund shall, upon my death, be equally divided among and added to the trust funds or shares herein created for my other nephews, Roy A. Curtiss, Jr., Thomas Quinn Curtiss and Sidney Q. Curtiss, or the then living issue of any of them who may have predeceased me.’ Similar provisions were made for the benefit of each of the other three nephews. The daughter had no nieces, and her only nephews were the four named in the eighth article of her will, all of whom are minors, now living, and all of whom were alive when their grandfather Frank Curtiss died. None of the nephews has issue. The respondent Everett J. Esselstyn is named as trustee under the will of Sophia Curtiss.
Three of the requests for instructions are: (1) Whether or not the trust...
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