Phelps v. Phelps

• Decision Date: 24 February 1887
• Parties: PHELPS and others, Ex'rs v. PHELPS and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 570

10 N.E. 452

PHELPS and others, Ex'rs v. PHELPS and others.

Supreme Judicial Court of Massachusetts, Hampden.

February 24, 1887

COUNSEL

George M. Stearns, for John W. Phelps.

The defendant claims that the one-half of the remainder of the estate of his father in which he is interested is to be held by the executors charged with a trust for himself and in behalf of Willis Phelps, 2d; also that whatever sums may be paid to him from the income are charged with a trust in his hands for the benefit of said Willis. Such was the apparent intention of the testator. He made provision for the disposal of the principal. One-half of this half John W may dispose of to his heirs at his death; the other half of this half, "which John W. is to receive the income from," shall go to Willis, 2d. Every dollar John W receives is charged with a trust in his hands for the support of Willis, as much as his own. Chase v. Chase, 2 Allen, 101; Loring v. Loring, 100 Mass. 340; Proctor v. Proctor, 141 Mass. 169, 6 N.E. 849; Andrews v. Bank of Cape Ann, 3 Allen, 313. The fact that John W. may elect how this support shall be supplied does not lessen the obligation to support. There is no such power of disposal as in Clapp v. Ingraham, 126 Mass 200. The fact that the income is charged with a trust for the support of Willis, 2d, as settled by the cases cited, establishes the claim of John W. that his interest is only an equitable one. See Saunderson v. Stearns, 6 Mass. 37; Field v. Hitchcock, 17 Pick. 182; Barrus v. Kirkland, 8 Gray, 512; Hatfield v. Sohier, 114 Mass. 48; Simonds v. Simonds, 121 Mass. 191; Smith v. Snow, 123 Mass. 323; Sanford v. Sanford, 135 Mass. 314. The interest of John W. cannot be reached by attachment at common law. Sibley v. Quinsigamond, Nat. Bank, 133 Mass. 515. Neither can the same be reached by a creditors' bill in equity. Broadway Nat. Bank v. Adams, 133 Mass. 170; Foster v. Foster, Id. 179. This case differs from Loring v. Loring, 100 Mass. 340, and also from Forbes v. Lothrop, 137 Mass. 523. If any interest was to be added to the gifts, the testator would have so declared. The legatees are not takers of the income of a residue, as in Lovering v. Minot, 9 Cush. 151, and Sargent v. Sargent, 103 Mass. 297; nor of specific legacies, as in Sleech v. Thorington, 2 Ves.Sr. 560; nor entitled by the terms of the will to interest, as in Knight v. Knight, 2 Sim. & S. 490; nor is the legacy to a child, Lupton v. Lupton, 2 Johns.Ch. 614-628; Miles v. Wister, 5 Bin. 477; Ellis v. Ellis, 1 Schoales & L. 1; Hearle v. Greenbank, 3 Atk. 716. These legacies are therefore governed by the general rule that interest is to be added from the time they are payable.

W.W. McClench, for Henry Willis Phelps.

It is to be observed, in the first place, that, although the testator neither makes in terms any bequest or devise in trust, nor appoints any trustees, the terms of the will imply that the property is to be kept together for a period. The executors therefore become trustees of both the real estate and personal estate. Kingsbury v. Gould, 9 Metc. 285; Blake v. Dexter, 12 Cush. 567. Henry W. Phelps claims to take, under the provision, an absolute estate free from all trusts. The rule of law is well settled that to create a trust the words must be imperative, the subject-matter must be certain, and the objects must be as certain as the subject. Wright v. Atkyns, 1 Turn. & R. 157; Morice v. Bishop of Durham, 10 Ves. 534; Thorp v. Owen, 2 Hare, 608; Wood v. Cox, 2 Mylne & C. 684; Thayer v. Thayer, 129 Mass. 192; Schmaunz v. Goss, 132 Mass. 141. The language used in this case is not imperative. Hess v. Singler, 114 Mass. 57; Sears v. Cunningham, 122 Mass. 538; Barrett v. Marsh, 126 Mass. 213. The subject-matter and the objects are also uncertain. Meredith v. Heneage, 1 Sim. 558. But if Henry W. Phelps has not a fee-simple in an undivided half of the real estate, and an absolute interest in the personal estate, he claims that at least he is entitled to an estate for life in the realty, and also a life-interest in the personalty, with the right of possession. 1 Jarm. Wills, 502; 2 Jarm. Wills, 202; Fiske v. Cobb, 6 Gray, 144; McCarty v. Cosgrove, 101 Mass. 124; Taggard v. Piper, 118 Mass. 315; Quigley v. Gridley, 132 Mass. 38. This case differs from Hooper v. Bradbury, 133 Mass. 303. The defendant claims that interest cannot be earned by the legacies before the time specified in the will for the payment of the legacies themselves. These legacies do not come within the exceptions to the rule by reason of being legacies to grandchildren. Archerley v. Vernon, 1 P.Wms. 783. None of these legacies are specified, and the general rule ought to govern. 1 Williams, Ex'rs, 1424-1427; Crickett v. Dolby, 3 Ves. 10; Merritt v. Richardson, 14 Allen, 241; Kent v. Dunham, 106 Mass. 586.

Chas. L. Long, for M.I. Phelps and guardian ad litem.

"The principal object in construing a will is to ascertain the intention of the testator." This, being ascertained, will prevail, unless it is inconsistent with some fixed rule of law. Brown v. Merrill, 131 Mass. 324. It is to be presumed, also, that he did not intend to leave any part of his estate intestate. Weston v. Weston, 125 Mass. 270. It is not a case of an absolute gift of a life-estate with a full power of disposal, by deed or otherwise, over the entire property, as in Ide v. Ide, 5 Mass. 499; Burbank v. Whitney, 24 Pick. 146; Hale v. Marsh, 100 Mass. 468; Kelley v. Meins, 135 Mass. 231; Metcalf v. First Parish Framingham, 128 Mass. 370. This devise to Henry is coupled with a trust in favor of his family, (Andrews v. Cape Ann Bank, 3 Allen, 313; Whiting v. Whiting, 4 Gray, 236;) the word "family" including his wife and children, (Bradlee v. Andrews, 137 Mass. 55; Bowditch v. Andrew, 8 Allen, 339; Bates v. Dewson, 128 Mass. 334.) It gives to Henry the power to dispose of the estate; but a power that cannot be operative until his death. Cook v. Holmes, 11 Mass. 530; Metcalf v. First Parish Framingham, supra. But little difficulty exists as to the legacy of John W. Phelps. There can be no merger of a life-estate and the power of disposal here. It is evident from the provisions of the will that it was the intention of the testator that the entire remainder, each half by itself, should be held in trust. If the language of the will did not show that it was the purpose of the testator to have the executors hold the trust, the trust would devolve on them. Whiting v. Whiting, supra. It is claimed by the grandchildren, who are special legatees, that their legacies are to be held in trust until the time of their payment arrives; and that, if they earn any interest while so held, such interest attaches to the fund which earns it, and is payable to the legatees with the principal. The testator expressly provides that these donations shall be deducted before the remainder shall be determined. Wait v. Belding, 24 Pick. 129; Hatfield v. Sohier, 114 Mass. 48; Perry, Trusts, § 468; Boynton v. Dyer, 18 Pick. 7. It is the duty of a trustee to keep invested the trust property; and any income the property earns, attaches to the property, and becomes a part of the legacy. Elliott v. Sparrell, 114 Mass. 404. The will does not give this income to the sons. If they are to receive it, they will take an undivided estate.

OPINION

GARDNER J.

The plaintiffs, executors, seek the instruction of the court as to the interpretation of the will of Willis Phelps, deceased. Although the testator appointed no trustees, it is clear that by a fair implication, by the will, the property is to be kept together for a time. The executors, therefore, became trustees of both the real and personal estate during the time it was necessary for them, under the terms of the will, to act in that capacity. The real and personal estate would vest in the executors upon the same trusts. Kingsbury v. Gould, 9 Metc. 282.

The defendant Henry Willis Phelps, while admitting that the executors became trustees of the real and personal estate for a certain period, argues that, upon the termination of the general trusts by the payment of the legacies, or the refusal to pay them, he is by the terms of the will vested with the legal title in fee-simple to an undivided one-half part of all the real estate of the testator, and to an absolute interest in one-half of the personal estate. The clause of the will relating to Henry Willis Phelps is as follows "After deducting the above donations, gifts, and provisions, one-half of the income of the remainder of my property (both real and personal) I give to my son Henry Willis Phelps, for the support of himself and family,--at his decease to be disposed of to his legal heirs as he shall desire or direct, (by will or otherwise.)" It is not clear, by the power of disposal in the latter part of this clause, whether it is income or principal which the testator refers to; but, comparing this power with that given to John in the clause, "One-half of this half of my estate is to be disposed of at the decease of my son John," etc., we think that the true meaning of the testator was to give his son Henry Willis Phelps, at his decease, power to dispose of, by will or otherwise, one-half of the remainder of the testator's estate. The presumption is that the testator did not intend to leave any part of his estate undisposed of. Weston v. Weston, 125 Mass. 270. His intention to dispose of all his property is apparent from the language of the will, by the words which he has used. If he has omitted to express his intention, this omission cannot be supplied by conjecture; "but, if a reading of the whole will produces a conviction that the testator must necessarily have intended an interest to be given which is not bequeathed by express and...