Olliffe v. Wells

• Decision Date: 12 January 1881
• Citation: 130 Mass. 221
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Shearse Olliffe & another v. Eleazer M. P. Wells, executor

130 Mass. 221

Shearse Olliffe & another v. Eleazer M. P. Wells, executor

Supreme Court of Massachusetts

January 12, 1881

Argued November 26, 1878

Suffolk. Bill in equity, filed December 11, 1877, alleging that the plaintiffs were the heirs at law and next of kin of Ellen Donovan, who died in Boston on May 23, 1877, and whose will, which was duly admitted to probate, after giving various legacies, contained the following clause: "13th. To the Rev. Eleazer M. P. Wells, all the rest and residue of my estate, to distribute the same in such manner as in his discretion shall appear best calculated to carry out wishes which I have expressed to him or may express to him;" and nominated said Wells to be the executor.

The bill further alleged that Wells, who had been appointed executor by the Probate Court, claimed the right, after payment of the legacies, to dispose of the residue of the estate according to his own pleasure and discretion, and contended that he had received directions from Ellen Donovan as to the disposition of said residue; whereas, as the bill charged, the legacy of the residue of the estate had lapsed and said residue should be distributed among the heirs at law and next of kin of the testatrix.

The bill prayed for a discovery, an account, an order for payment of the residue to the plaintiffs, a temporary injunction against distributing the residue of the estate, and for further relief.

The answer admitted the making of the will and the appointment of the defendant as executor; left the plaintiffs to prove whether they were the heirs at law and next of kin of the testatrix; and averred that the testatrix, before and at the time of and after the execution of the will, orally expressed and made known to the defendant her wish and intention that the rest and residue of her estate should be disposed of and distributed by the defendant, as executor of her will, for charitable purposes and uses, according to his discretion and judgment, and directed the defendant so to dispose of and distribute the said rest and residue; especially expressing to the defendant her desire that the poor, aged and infirm and the children and others in need, and worthy of charity and assistance, under the care of or connected with Saint Stephen's Mission, of Boston, and other deserving friends and deserving poor, should be aided and assisted out of said rest and residue, if the defendant in his discretion should see fit so to do; that the defendant desired and intended, unless otherwise ordered by the court, to dispose of and distribute the said rest and residue for charitable purposes and uses, according to his discretion, and especially for the benefit of the deserving poor, aged and infirm, and the children and others in need and worthy of charity and assistance, under the care of or connected with said Saint Stephen's Mission, and other deserving friends and deserving poor, as requested and directed by the testatrix; and that the testatrix, except by her will, gave to the defendant no written direction, wish or order as to the distribution of the residue of her estate remaining after the payment of the legacies.

The case was heard by Colt, J., and reserved for the consideration of the full court, on the bill and answer, and an agreement of the parties that the facts alleged in the answer should be taken as true. If these facts did not show a defence to the bill, the case was to be sent to a master, to determine whether the plaintiffs were the heirs and next of kin of the testatrix, and the amount of the residue of the estate; otherwise, the bill to be dismissed.

Decree for the plaintiffs.

L. Mason, for the plaintiffs.

C. Browne & A. P. Browne, for the defendant, cited Crook v. Brooking, 2 Vern. 50, 106; Sanford v. Raikes, 1 Meriv. 646; Smith v. Attersoll, 1 Russ. 266; Riordan v. Banon, Ir. R. 10 Eq. 469; Stubbs v. Sargon, 3 Myl. & Cr. 507; Thayer v. Wellington, 9 Allen 283; Crosby v. Mason, 32 Conn. 482; Pritchard v. Hicks, 1 Paige 270; Hone v. Van Schaick, 7 Paige 221.

Gray, C. J. Colt & Morton, JJ., absent.

OPINION

Gray, C. J.

Upon the face of this will the residuary bequest to the defendant gives him no beneficial interest. It expressly requires him to distribute all the property bequeathed to him, giving him no discretion upon the question whether he shall or shall not distribute it, or shall or shall not carry out the intentions of the testatrix, but allowing him a discretionary authority as to the manner only in which the property shall be distributed pursuant to her intentions. The will declares a trust too indefinite to be carried out, and the next of kin of the testatrix must take by way of resulting trust, unless the facts agreed show such a trust for the benefit of others as the court can execute. Nichols v. Allen ante, 211. No other written instrument was signed by the testatrix, and made part of the will by reference, as in Newton v. Seaman's Friend Society, ante, 91.

The decision of the case therefore depends upon the effect of the fact, stated in the defendant's answer, and admitted by the plaintiffs to be true, that the testatrix, before and at the time of and after the execution of the will, orally made known to the defendant her wish and intention that the residue should be disposed of and distributed by him as executor of her will for charitable uses and purposes, according to his discretion and judgment, and directed him so to dispose of and distribute it, especially expressing her desire as to the objects to be preferred, all which objects, taking the whole direction together, may be assumed to be charitable in the legal sense.

In any view of the authorities it is quite clear, and is hardly denied by the defendant's counsel, that intentions not formed by the testatrix and communicated to the defendant before the making of the will could not have any effect against her next of kin. Thayer v. Wellington, 9 Allen 283. Johnson v. Ball, 5 De Gex & Sm. 85. Moss v. Cooper, 1 Johns. & Hem. 352. But assuming, as the defendant contends, that all the directions of the testatrix set forth in the answer are to be taken as having been orally communicated to the defendant and assented to by him before the execution of the will, we are of opinion that the result must be the same.

It has been held in England and in other States, although the question has never arisen in this Commonwealth, that, if a person procures an absolute devise or bequest to himself by orally promising the testator that he will convey the property to or hold it for the benefit of third persons, and afterwards refuses to perform his promise, a trust arises out of the confidence reposed in him by the testator and of his own fraud, which a court of equity, upon clear and satisfactory proof of the facts, will enforce against him at the suit of such third persons. Chamberlaine v Chamberlaine, 2 Freem. 34. Reech v. Kennegal, 1 Ves. Sen. 123, 125; S. C. Ambl. 67; 1 Wils. 227. Stickland v. Aldridge, 9 Ves. 516, 519. Jones v. Badley, L. R. 3 Ch. 362, 364. McCormick v. Grogan, L. R. 4 H. L. 82, 88, 97. Owings's case, 1 Bland 370, 402. Hoge v. Hoge, 1 Watts 163, 214-216. Church v. Ruland, 64 Pa. 432. Williams v. Fitch, 18 N.Y. 546. McLellan v. McLean, 2 Head 684. Barrell v. Hanrick, 42 Ala. 60. Hooker v. Axford, 33 Mich. 453. Dowd v. Tucker, 41 Conn. 197. Williams v. Vreeland, 5 Stew. (N.J.) 135, 734. See also Glass v. Hulbert, 102 Mass. 24, 39, 40; Campbell v. Brown, ...