Nunes v. Rogers

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: COX
• Citation: 30 N.E.2d 259,307 Mass. 438
• Parties: NUNES v. ROGERS.
• Decision Date: 27 November 1940

307 Mass. 438
30 N.E.2d 259

NUNES
v.
ROGERS.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 27, 1940.

Suit by John B. Nunes, administrator with the will annexed of the estate of John F. Rapoza, deceased, against Laura S. Rogers to restrain foreclosure of mortgage, to have mortgage declared null and void, and to require its discharge on the records. From a decree for petitioner, the defendant appeals.

Reversed and decree directed dismissing the bill.

[30 N.E.2d 260]

Appeal from Superior Court, Bristol County; Morton, Judge.
J. B. Nunes, of New Bedford, for petitioner.

F. Vera, of New Bedford, for respondent.

COX, Justice.

The plaintiff is the administrator with the will annexed of the estate of John F. Rapoza, who, by will, gave to his wife Rosa, a life estate in all of his property ‘with power to sell, mortgage, or otherwise dispose of so much of my said estate as in her judgment shall be necessary for her comfortable support and maintenance without securing a license therefor from the Probate Court.’ The will further provided that, upon the death of the wife and apart from a bequest of the household furniture, whatever ‘may remain of the rest, residue and remainder of my Estate’ was to go to the four children, named therein, to be divided between them in equal shares. Rapoza died in 1921 leaving his widow, Rosa, and the four children named in the will. The widow, who was the executrix of her husband's estate, died in 1937, and thereafter the plaintiff was appointed administrator with the will annexed (d.b.n.).

In March, 1930, the widow conveyed to a son-in-law several parcels of real estate that had passed under the will, in trust, however, for her benefit and that of the four children. Prior to December, 1930, one of the children wished to purchase a fishing boat, and the son-in-law, at the direction of the widow, mortgaged two parcels of the land to the defendant's assignor. The widow knew that the proceeds of the mortgage were to be used by the son for the purchase of a boat. The son-in-law obtained $600 on the mortgage, which he loaned to the son who purchased the boat, and who, in turn, gave to the son-in-law a promissory note for that amount. The widow did not have or receive the proceeds of this note or any benefit therefrom, and none of it was used for her comfortable support and maintenance. The fishing business was a failure. The boat was sold for $100 which was paid to the son-in-law who, in turn, paid it to the mortgagee, together with whatever interest the son had paid on his note. The son-in-law makes no claim individually to the note. The widow left no estate, and the only property that she was interested in came from or through her

The trust deed provided that the trustee, who was the son-in-law hereinbefore referred to, should apply ‘the gross proceeds from said real estate’ that was conveyed, for the comfortable maintenance of the widow for and during her life, and apply any balance remaining to the maintenance of the real estate; that upon the death of the widow, the trustee was to hold the real estate ‘for the use and benefit of such of my children * * * [the four named in the will] as have paid over to my trustee herein during my life, upon request made to each of them, such an amount as my said trustee shall designate to each of them as necessary for the discharge of part or all of my indebtedness, including such indebtedness as arises from the maintenance of the herein granted premises.’ The deed further provided that if any child, having once contributed ‘as requested by my said trustee,’ shall later fail to comply with a subsequent request ‘by my said trustee for contribution, then such child shall be reimbursed for any contribution made and shall not participate in the use and benefit in the herein granted premises'. Authority was given the trustee to sell, mortgage or ‘partition off’ the premises when and as he ‘in his sole discretion deems fit, applying and distributing the proceeds if any, both as to principal and interest as hereinbefore generally provided, and no grantee or mortgagee shall be required to see to the application

[30 N.E.2d 261]

of the proceeds of any sale or mortgage, notwithstanding that any such sale or mortgage is made to one or more of the possible beneficiaries hereunder.’ As to the grantor's title, reference was made to the will of her husband. The deed of trust covered eight parcels of land, all of which comprise from one to seven separate lots. The mortgage in question covers lots in two of these parcels. Before this mortgage was given, the trustee, with the knowledge and consent of the widow, had sold two lots of the land, the proceeds of which were used in part to pay some of her ‘bills and debts' and the balance was deposited in a bank. This balance was later paid to the widow from time to time for her support.

This suit is brought against the assignee of the mortgage to restrain its foreclosure, to have it declared null and void, and to require its discharge on the records.

The widow, by the will, took an estate for life with a power to dispose of the entire estate depending upon a contingency. Obviously this power, if the contingency happened, would have to be exercised during the lifetime of the widow and by her personally. Larned v. Bridge, 17 Pick. 339, 342. The power constitutes a personal confidence, and it was her judgment as to the necessity for her comfortable support and maintenance in which the testator reposed his confidence. ‘The power is to be exercised by [the donee]; not by the executrix, nor by any trustee, whether appointed by this [Supreme Judicial] court or the probate court.’ Dodge v. Moore, 100 Mass. 335, 336. Such a provision in a will creates no trust in the donee or in the executor. Bamforth v. Bamforth, 123 Mass. 280, 282. But the power of disposal was limited by its very terms and could be exercised for no other purpose than therein stated, Allen v. Hunt, 213 Mass. 276, 278, 100 N.E. 552, and it is clear that if the widow had made no disposal of the estate, or any part of it, in accordance with the power during her lifetime, whatever was...