Pirie's Estate, In re

• Decision Date: 07 February 1950
• Docket Number: No. 819,819
• Citation: 71 A.2d 245,116 Vt. 159
• Parties: In re PIRIE'S ESTATE.
• Court: Vermont Supreme Court

Page 245

71 A.2d 245

116 Vt. 159

In re PIRIE'S ESTATE.

No. 819.

Supreme Court of Vermont.

Feb. 7, 1950.

Bove, Billado & Dick, Rutland, Philip B. Billings, Wallingford, Conn., for plaintiff.

Lawson & Paterson, Barre, Hunt & Hunt, Montpelier, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

SHERBURNE, Chief Justice.

This is a petition to the probate court for the District of Randolph by Bernie E. Gomo individually and as ancillary special administrator of the estate of his mother, Maude Isabelle Pirie Gomo, late of North Carolina, deceased, seeking to establish certain rights relative to a trust estate under the will of James K. Pirie, late of Williamstown, deceased, as decreed by the probate court, and for an accounting by the trustees of the trust estate. Muriel E. Gomo, a daughter of Maude Isabelle Pirie Gomo, appeared as a party plaintiff. After making findings of fact the probate court dismissed the petition, except as to the prayer that the trustees account, and ordered a full accounting of the management of the trust estate. From this an appeal was taken to the county court, where a hearing was had, findings of fact were made, and judgment entered. The case comes here upon petitioners' exceptions.

James K. Pirie died testate on October 13, 1921. He was survived by his widow, Mary S. Pirie, and ten children respectively born in the years indicated, namely: James G. Pirie 1883, Mary Pirie Craig 1884, Fred F. Pirie 1886, Grover C. Pirie 1887, Maude Isabelle Pirie Gomo 1889, Merle Pirie Bassett 1893, Bessie Pirie Sartwell 1894, Daisy Pirie Guernsey 1896, Elsie Pirie Riddle 1898 and Christina Pirie Haskett 1900.

In its decree dated June 16, 1923, the probate court, in accordance with the will, decreed to the two oldest sons, James G. Pirie and Fred F. Pirie, as trustees, during their lives and the life of the survivor, all of testator's granite quarry property, machinery, tools and supplies, an amount of Liberty bonds and War Savings stamps, and the residue of the estate remaining after the payment of all legacies and devises decreed to the widow, children and other legatees upon trust as follows: that the named trustees were to each receive a stated annual salary for their services in conducting the quarry business, and, after payment of all salaries and expenses and keeping up the property and equipment at all times in good condition, to create a sinking fund of $20,000 from earnings as soon as possible, and keep the same at interest, and only use the fund for certain purposes, and if depleted the amount so used to be replaced as soon as the business will allow, so that the amount of the fund will always be kept good. We now quote: 'After the above conditions have been fully performed, any and all profits then remaining shall be divided annually by the aforesaid trustees and by them paid in equal proportions to each of the sons and daughters then living and to said wife, Mary S. Pirie. The sons and daughters now living are James G. Pirie, Fred F. Pirie, Grover C. Pirie, Maude Pirie Gomo, Elsie E. Riddle, Daisy Pirie, Christina Pirie, Merle Pirie Bassett, Mary Pirie Craig and Bessie Pirie Sartwell. * * * And when both James G. Pirie and Fred F. Pirie are deceased, then the entire remainder of the Quarry property shall belong, and said Court hereby decrees said remainder, in fee simple to the then living grandchildren of said James K. Pirie, to be equally divided between them.' In addition the probate court decreed to Mary S. Pirie, the widow, during life one equal eleventh part of the annual net income of the quarry property, and, mentioning each of the ten children in separate paragraphs in the following order, decreed to Grover 'during his life one equal tenth part, after mother's life interest, until the death of said trustees, in the annual net income of said Quarry trust estate, after creation of the $20,000 sinking fund', and to Christina, Bessie, Daisy and Merle, each a like one tenth part 'during her life' and until the death of the trustees, and to James, Fred, Maude Pirie Gomo, Elsie and Mary, each a 'life interest till death of trustees' in one tenth of such annual net income after mother's life interest.

On or about the date of the decree James G. Pirie and Fred F. Pirie qualified and commenced their duties as co-trustees, and continued to act as such until the death of James G. Pirie on September 4, 1947. Since then Fred F. Pirie has acted as sole surviving trustee. The co-trustees and the surviving trustee have treated the calendar year as being the fiscal year of the trust estate. The $20,000 sinking fund was created and has been maintained. The amount of the trust estate which has been distributed by the trustees after the end of each fiscal year up to and including 1946 has been distributed in equal shares to the widow and children of the testator as were living at the end of each fiscal year, and to no other persons. Maude Pirie Gomo died in 1933, and none of the amount distributed for that fiscal year or any fiscal year thereafter was distributed to her, to her estate, or to the petitioners. Bessie died in 1936, and none of the amount distributed for that fiscal year, or any year thereafter, was distributed to her or to her estate. The widow died on December 11, 1945.

The trustees never rendered any annual account in the manner required by law until presentation of an account for the period January 1, 1946, to December 31, 1946. The hearing upon this has been postponed pending these proceedings. The files of the probate court contain several reports of an accountant for various years, several letters from the trustees to the probate court, and various communications relative to the state of the business of the trust and disbursements made to beneficiaries.

Maude Pirie Gomo, late of North Caroline, died testate, and left surviving her three children and her husband, all of whom continue to survive. In June 1945, these three children made a demand upon the trustees for the share of the trust estate that would have been their mother's had she continued to live. On January 8, 1947, Bernie E. Gomo, one of the children, was duly appointed and qualified as ancillary special administrator of his mother's estate in this State.

The county court, so far as here material, adjudged that the decree of the probate court as it relates to the trust estate is the law of the case and is final and conclusive; that by the terms of the decree the net income or profits derived from the trust, after the deductions referred to in the decree, are to be divided annually and paid in equal proportions to each of the sons and daughters of the testator who shall then be living, subject to the rights of the widow; that Maude I. Pirie Gomo having died in 1933, her estate is not entitled to the share of the annual net income from the trust which she would have had for the year 1933 or any succeeding year if she had lived throughout the year 1933 and thereafter; that Bessie Pirie Sartwell having died in 1936, her estate is not entitled to the share of the annual net income which she would have had for that year if she had lived throughout the year; and it was not the duty of the trustees, or either of them, to retain one eleventh of the net income from the date of the death of Bessie Pirie Sartwell to December 11, 1945, the date of the death of the widow of the testator, and from that date to retain one tenth of the income in trust for the benefit of the grandchildren of the testator who should be alive at the time of the death of the surviving trustee; and that Fred F. Pirie, surviving trustee, and the executor of the deceased trustee were ordered to render a full account relative to the trust as required by law.

The petitioners in their brief claim that the only judgment legally supportable is as follows:

'A. That under the decree Maude is decreed an equitable interest in the annual net income after the fulfillment of certain conditions for the duration of the lives of James G. and Fred F., said interest being a 1/11th interest therein until the death of Mary P. Barney (the name of the widow after remarriage), and thereafter, during the life of the trust, a 1/10th interest; and that upon the death of Maude the share that would have been hers had she continued to survive is payable to her estate; and if this view is not adopted:

'B. That upon the death of Maude or such other beneficiaries as have or may die before the termination of the trust, the share of income accruing after such death as would have been payable to such beneficiary had he or she continued to live is impressed with a trust for the benefit of the grandchildren of James K. Pirie living when both trustees shall have died, and is then distributable to such grandchildren as a part of the remainder; and further, if the first view is not adopted:

'C. That upon the death of any of the beneficiaries, including Maude, the annual net income of the year in which such beneficiary dies is apportionable and payable to the decedent's estate.'

Before discussing the points raised it seems well to point out that the probate court should not have attempted to decree the avails of the trust estate after the death of the trustees to the grandchildren of the testator then living. After the death of the surviving trustee it will be necessary to ascertain who are the then living grandchildren and to decree to them the avails of the trust estate. See In re Beach's Estate, 103 Vt. 70, 84, 85, 151 A. 654; In re Peck's Estate, 96 Vt. 183, 189, 118 A. 527; In re Well's Estate, 69 Vt. 388, 393, 38 A. 83; Morse, Excr. of Turner's Estate v. Lyman, 64 Vt. 167, 171, 24 A. 763. The decree in this case decreed the quarry property to the trustees upon trust, as provided in the will, and used the language of the will about the distribution of the income to the widow and children of the...