Old Colony Trust Co. v. Rhodes

• Decision Date: 04 February 1938
• Citation: 12 N.E.2d 809,299 Mass. 390
• Parties: OLD COLONY TRUST CO. v. RHODES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 390

12 N.E.2d 809

OLD COLONY TRUST CO.

v.RHODES.

Supreme Judicial Court of Massachusetts, Plymouth.

Feb. 4, 1938.

Proceeding by the Old Colony Trust Company, as trustee under the will of John C. Rhodes, deceased, against Florence Cryer Rhodes, individually and as executrix of the estate of John B. Rhodes, deceased, and others, for instructions as to distribution of trust property under the will. From a decree instructing petitioner, named respondent appeals.

Affirmed.Appeal from Probate Court, Plymouth County; Poland, Judge.

John M. Bullard, of New Bedford, stated the case.

R. Wait, of Boston, for respondent Florence Cryer Rhodes.

C. P. Warren, of Boston, for respondents Marcus Arnold Rhodes and another.

DOLAN, Justice.

This is a petition for instructions as to the distribution of certain property held in trust by the petitioner, as it is trustee under the seventh clause of the will of John C. Rhodes, who died July 15, 1916, leaving as his only heirs at law a widow, Caroline M. Rhodes, and a son, John B. Rhodes. He was also survived by a grandnephew, Marcus Arnold Rhodes, who is a respondent in the proceeding, and a grand-niece, Nancy Bassett Rhodes Barker, who has since deceased and whose executor is also a respondent. By the seventh clause of his will the testator gave one third of certain described personal property in trust to pay the net income to his wife for life, and upon her death to pay over three fourths of the trust fund then in the hands of the trustee ‘as provided in the Ninth Clause of this will.’

By the eighth clause of the will the testator gave his son John $50,000 out of the remainder of his estate. In the ninth clause he gave all the rest, residue and remainder of his estate in trust to pay the income to ‘John’ for life, and therein provided as follows: ‘If at any time after the expiration of a period of seven years from the date of my death said Trustee acting in his sole discretion shall deem it wise and prudent and for the best interests and welfare of my said son, then to pay over and deliver either a part or the whole of said trust fund to my said son * * * in that event as to such part or the whole so paid over and delivered this trust shall terminate, and the property so paid over and delivered shall be and become the absolute property of my said son. In the exercise of the discretion herein given, said Trustee is directed to use his own judgment as to the wisdom of terminating this trust, either in part or in whole, as herein provided, in view of the conduct and manner of life of my said son and in view of his opinion as to the probability of his making a reasonably prudent use of the property.’

Other provisions of the ninth clause are as follows: ‘(4). Upon the death of my said son, John B. Rhodes, during the continuance of this trust should his wife Florence Cryer Rhodes survive him one-third of the trust fund then in the hands of my said Trustee shall be paid over to her free and discharged of all trusts. (5). Upon the death of my said son, John B. Rhodes, during the continuance of this trust leaving issue him surviving the remaining two-thirds of the trust fund after paying one-third thereof to his wife should she survive him as above provided, or the whole of said trust fund then remaining in the hands of the said Trustee in case his said wife shall not survive him as above provided, shall remain and continue to be held by my said Trustee until all of the living children of my said son shall reach the age of twenty-one years. * * * (6) Upon the death of my said son John B. Rhodes during the continuance of this trust without issue him surviving then to pay over and deliver two-thirds of the trust fund or so much thereof as shall then remain in case the said wife of my said son survives him as above provided, or the whole of said trust fund then remaining in case the said wife of my said son does not survive him, to Marcus Arnold Rhodes and Nancy Bassett Rhodes, children of my nephew George H. Rhodes and of his late wife Louisa Bassett Rhodes now living in Taunton in said Bristol County.’ By the twelfth clause the testator subjects the interest of each beneficiary ‘under the trusts created’ by the will to stringent spendthrift provisions as to both income and principal, going so far as to authorize the trustee in the absence of personal receipt from a beneficiary to make payments for the benefit of such beneficiary or for his or her family; with similar power in case of attempted attachment, sequestration, assignment or anticipation by any beneficiary; and also, in such case, if the condition exists at the termination of the trust, to pay over the portion to which the beneficiary affected would otherwise be entitled to some member of the family of such beneficiary.

Oliver Prescott was duly appointed and qualified as trustee under the ninth clause of the will, and, on July 16, 1923, he paid over and delivered to the testator's son the trust estate actually in his possession and executed an instrument which was filed in the ‘Plymouth County Probate Court.’ The instrument reads as follows: ‘Whereas by the Seventh Clause of the will of John C. Rhodes, late of Marion, Mass., deceased, a certain Trust Fund was created for the benefit of Caroline M. Rhodes for life, and Whereas it is provided that upon the death of the said Caroline M. Rhodes three-fourths of the Trust Fund created by said Seventh Clause of said will shall be paid over as provided in the Ninth Clause of the said will, and Whereas the said Ninth Clause of said will provided a Trust Fund for the benefit of John B. Rhodes for and during his life, with the provision that the Trustee, after the expiration of a period of seven years from the date of the death of the testator, should have the right, in his discretion, to terminate the Trust created by said Ninth Clause and pay over and deliver a part or the whole of said Trust Fund to the said John B. Rhodes free and discharged of all trusts, and Whereas in accordance with the provisions for termination of the Trust contained in said Clause the Trust was terminated on July 16th, 1923, I, Oliver Prescott, Trustee under the said Ninth Clause of the will of John C. Rhodes, do hereby assign, transfer and set over unto the said John B. Rhodes as part of the said Trust Fund all the right, title and interest which I have as Trustee under the Ninth Clause of the said will in and to the Trust Fund created by the Seventh Clause of said will, the purpose of this document being to vest in the said John B. Rhodes individually the right to receive three-fourths of the Trust Fund created by the said Seventh Clause of said will upon the death of the said Caroline M. Rhodes, and I do hereby authorize and empower the said John B. Rhodes to receive directly in his own name from the Trustee of said Seventh Clause...