Perabo v. Gallagher

• Decision Date: 12 April 1922
• Parties: PERABO v. GALLAGHER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 207

135 N.E. 113

PERABO

v.GALLAGHER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 12, 1922.

Appeal from Superior Court, Suffolk County, Sisk, Judge.

Suit by Louise E. Perabo against Anna J. Gallagher and another. From a decree in favor of plaintiff, the defendant named appeals. Modified and affirmed.

The suit was for money expended in the care and support of defendant's son and was subsequently amended by substituting an account annexed therefor. Plaintiff also sought to have defendant's right, title, and interest under the provisions of a will reached and applied on her indebtedness, and the decree appointed a special master to sell all such right, title, and interest, legal and equitable, on defendant's failure to pay the amount of the decree.

William P. Meehan and Charles H. Donahue, both of Boston, for appellant.

James M. Graham, of Boston, for appellee.

BRALEY, J.

The will of Barbara M. Smith devised and bequeathed to her five daughters, among whom was Anna J. Hergt, now by marriage the defendant Anna J. Gallagher,

‘all the real and personal estate * * * of which I may at the time of my decease be seized, possessed of, or entitled to, equally share and share alike to be their absolute property, and free from the control of all persons except as hereinafter provided.’

‘In the event of the death of any of my said daughters prior to my decease, then I give, devise and bequeath to the issue of any such daughter, equally, share and share alike, the share of my estate which the mother of such issue would have received had she survived me; and in the event of any of my daughters dying before me, and leaving no issue, then I give, devise and bequeath the share of my estate which such daughter would have received, had she survived me, to my surviving daughters and to the issue of any deceased daughter equally, share and share alike.

‘It is my desire, and I hereby direct that the legacies of my said daughters, Emma Inman and Anna J. Hergt, be held in trust for them for the term of ten (10) years from the date of my decease, and for the purpose I do hereby appoint John F. McDonald of said Boston, trustee for my said daughters, Emma Inman and Anna J. Hergt, to have and to hold all property, both real and personal, which they may be entitled to under the terms of this will for the term of ten (10) years from the date of my decease, or for such further term as may be necessary for him to settle his accounts as such trustee.

‘I hereby give unto the said John F. McDonald, trustee, aforesaid, absolute and unqualified charge and control of all the property, both real and personal, which my said daughters, Emma Inman and Anna J. Hergt, shall receive under the terms of this will, to be controlled, managed, sold, invested or paid over to them in whatever manner, and at whatever times as he shall in his discretion deem most advantageous and beneficial to them.’

The master reports that when the bill was filed the defendant trustee had in his possession a fund held for Anna J. Gallagher more than sufficient to satisfy the plaintiff's debt. But the testator died August 31, 1911, and suit having been brought November 29, 1919, the question is whether the fund can be reached and applied before the expiration of the period of ten years. The answer depends upon the construction of the will. If the testatrix had expressly said that the income was to be paid to the beneficiary upon her order or receipt in writing free from the interference or control of her creditors and never by way of anticipation or assignment, it could not be levied upon by the plaintiff. Boston Safe Deposit & Trust Co. v. Collier, 222 Mass. 390, 111 N. E. 163, Ann. Cas. 1918C, 962,...