Old Colony Trust Co. v. Shaw

• Decision Date: 08 December 1964
• Parties: OLD COLONY TRUST COMPANY et al., Trustees, v. Manoel Antonio SHAW et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 785

202 N.E.2d 785

348 Mass. 212

OLD COLONY TRUST COMPANY et al., Trustees, v. Manoel Antonio SHAW et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 6, 1964.

Decided Dec. 8, 1964.

John M. Woolsey, Jr., Boston, stated the case.

Warren F. Farr, Boston (W. Lincoln Boyden, III, Boston, with him), for Louis A. Shaw, 2d, and another; Arnold W. Hunnewell, Jr., Boston, for Quincy A. Shaw, Jr., Abraham Margolis, Boston, for Alexander A. Shaw, and Donald O. Smith, Boston, for Manoel A. Shaw and another, also with him.

Brooks Potter, Boston (James C. Heigham, Boston, with him), for Pauline S. C. Greene, John H. Linsley, Boston, for Nancy S. Cutler and another, and Ira S. Siegler, Washington, D. C., of the District of Columbia, for Joanne S. Freedman, also with him.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

SPALDING, Justice.

Quincy A. Shaw (the testator) died on June 12, 1908, and his will was admitted to probate on July 2, 1908. By the third article of his will he gave the residue of his estate to his trustees in trust 'To hold the same during the lives of my said wife and of my children and of the survivor of longest liver of them, and upon the death of the survivor or longest liver of them, I give, * * * the said Trust Property as it shall then exist to my lawful issue then living, they taking by representation according to the stocks.'

Article Fourth reads: 'Whereas at the time of my decease I may have advanced to my children certain sums of money or securities, which I shall have charged against them upon my books of account, I authorize and direct my said Trustees at the time of the final distribution of the estate, to deduct from the share of each child and his issue such amounts as may be respectively charged against them, but without interest; and any such charge shall not be enforced as a debt in any manner except as herein directed.'

The testator was survived by his widow, Pauline, who died on February 10, 1917, and by four children, Pauline Shaw Fenno, who died on August 6, 1952, Marion Shaw Haughton, who died on April 19, 1958, Robert Gould Shaw, Second, who died on March 29, 1930, and Quincy A. Shaw, Jr., who died on May 8, 1960. The testator also had a son, Louis A. Shaw, who died on July 2, 1891, thus predeceasing his father. When the trust terminated on May 8, 1960, there were living issue of each of the testator's children.

During 1960 and 1961, the testator's trustees distributed the major portion of the trust property. Subsequent to these distributions, an employee of the Massachusetts Inheritance Tax Division in connection with the determination of the inheritance taxes payable with respect to the final distribution of the trust contended that advances under the fourth article had in fact been made by the testator and that these were to be included in the amounts subject to inheritance tax. In support of this contention she produced a paper which appeared to be a copy of a memorandum appended to the inventory filed by the executors of the testator. Upon learning of this, the trustees examined the inventory (filed in the Registry of Probate on October 1, 1908) ¹ and discovered on one of its pages under the caption 'Memorandum' a notation which reads: 'The following amounts are in accordance with the terms of the fourth article of the will of the testator to be deducted from the share of each child and his issue at the time of the final distribution of the trust estate: Mrs. Marion S. McKean $184,855.74; Quincy A. Shaw 347,120.00; Mrs. Pauline S. Fenno 226,153.72; Robert G. Shaw 2nd 387,808.97.'

The memorandum, as well as the inventory, was in the handwriting of Albert M. Lyon who was authorized under the tenth article to keep the accounts of the estate; ² it was written on an otherwise blank sheet of inventory schedule paper. The page containing the memorandum directly follows the schedule of personal property and directly precedes the schedule of real estate.

The three appraisers of the estate, one of whom was Lyon, signed the following statement which appeared on the first page of the inventory: 'Pursuant to the foregoing order to us directed, we have appraised said estate as follows, to wit: Amount of Personal Estate, as per schedule exhibited $7,150,483.88. Amount of Real Estate, as per schedule exhibited, $390,650.00.' Directly below this was a jurat of the executors that 'the foregoing is a true and perfect inventory of all the estate of said deceased, that has come to their possession or knowledge as herein explained' ³ (emphasis supplied).

The trustees brought this petition in the Probate Court seeking instructions as to whether the memorandum was evidence of such advances sufficient to require them to deduct the amounts therein set forth from the shares to be distributed on termination of the trust in accordance with the fourth article of the will. Additional instructions relating to questions of adjustments and interest were asked, in case of an affirmative answer to the principal question.

At the hearing on the petition there was virtually no dispute as to the facts. The question for decision arises from the admission in evidence, subject to exception, of the memorandum of advances and the effect which was given to it in the final decree. The judge ruled that the memorandum was admissible and was 'sufficient to charge these advances.' A decree was entered instructing the trustees that the 'entry in the inventory * * * is, considered with other evidence * * *, sufficient to require the * * * [trustees] to deduct the amounts of advances as set forth in said entry from the shares to be distributed on termination of the trust in accordance with * * * Article Fourth.' ⁴ Certain of the respondents who would be adversely affected by the decree appealed.

We are of the opinion that the memorandum was admissible as a declaration of a deceased person under G.L. c. 233, § 65, which provides in pertinent part, 'In any action or other civil judicial proceeding, a declaration of a deceased person shall not be inadmissible in evidence as hearsay * * * if the court finds that it was made in good faith and upon the personal knowledge of the declarant.'

It is a condition precedent to the admissibility of a declaration under § 65 that the presiding judge shall make a preliminary finding of the facts essential to admission. Carroll v. Boston Elev. Ry., 210 Mass. 500, 96 N.E. 1040; Slotofski v. Boston Elev. Ry., 215 Mass. 318, 102 N.E.2d 417. The admission of the declaration imports such a preliminary inquiry and finding if nothing to the contrary appears. Rothwell v. First Natl. Bank, 286 Mass. 417, 190 N.E. 812. But the decision of the judge admitting the declaration is not conclusive where all the evidence material to the issue is contained, as here, in the record. In such a case, the action of the judge may be reviewed by this court. Ames v. New York, N. H. & H. R. R., 221 Mass. 304, 108 N.E. 920; Hasey v. Boston, 228 Mass. 516, 117 N.E. 827.

Not only can the court consider evidence which is extrinsic to the declaration, but it can also look to the statements, whose admissibility is being determined, as the basis for making preliminary findings. In New York Cent. R. R. Co. v. Central Vermont Ry., 243 Mass. 56, 136 N.E. 825, reports, which were signed by the deceased president of a corporation, were introduced as secondary evidence of a contract, the contents of which had been lost or destroyed. The court made use of the reports in determining whether they were made on the personal knowledge of the president. 'An examination of the reports * * * shows that the president was reciting facts and making recommendations about matters which apparently he was personally negotiating.' New York Cent. R. R. Co. v. Central Vermont Ry., supra, at 68, 136 N.E. at 829. See Tenney v. Foss, 268 Mass. 69, 167 N.E. 280. Compare Hasey v. Boston, 228 Mass. 516, 117 N.E. 827, where the declaration itself established that it was not made upon the personal knowledge of the deceased declarant.

The following facts and inferences could be found and drawn from the record, including the probate inventory and memorandum. Lyon, who died in 1953, was the writer of...