Pratt v. Condon

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: JENNEY
• Citation: Pratt v. Condon , 239 Mass. 167, 131 N.E. 304 (Mass. 1921)
• Decision Date: 03 June 1921
• Parties: PRATT v. CONDON et al. (two cases).

239 Mass. 167

131 N.E. 304

PRATT

v.CONDON et al. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

June 3, 1921.

Case Reserved from Supreme Judicial Court, Suffolk County.

Consolidated suits by Edmund T. Pratt, trustee, against John Condon and others. Reserved by a single justice on the petitions and answers for the determination of the full court. Decree as stated in the opinion.

The suits were brought by the trustee under two deeds of trust for instructions as to the proper disposition of the income. The deeds were substantially alike so far as now involved, and provided that after the grantor's death the income should be divided into shares, and that one of the shares should be paid to the grantor's daughter, Ellen J. O. Phinney, during her life, and upon her death to her children and the issue of any deceased children until the termination of the trust, the issue of one child to take one share.

W. Dudley Cotton, of Boston, guardian ad litem, pro se.

Roger S. Warner, of Boston, for respondent Leslie P. Phinney.

Perry, Jenney & Potter, or New Bedford, for respondent John Condon.

Warner, Stackpole & Bradlee, of Boston, for respondent Eleanor T. Houghton.

John G. Palfrey, of Boston, counsel and guardian ad litem for Hildreth Taylor.

Cifford H. Walker, Joseph R. Watkins, and Ropes, Gray, Boyden & Perkins, all of Boston, for respondent Ellen H. Taylor.

JENNEY, J.

By deeds dated April 4, 1896, Isaac Pratt, Jr., conveyed real estate in Boston to three persons upon certain trusts expressed in said deeds. Edmund T. Pratt is now sole trustee and as such holds property of substantial value (the proceeds of the sale of the real estate originally held in trust), and he is in receipt of a substantial income therefrom.

The property described in one of these deeds-hereinafter referred to as the first trust-was on Bromfield street and the deed provided, inter alia, as follows:

‘1. In special confidence and trust to hold said premises during the lives of all my children now living, and during the lives of all my grandchildren now living, and for twenty years after the death of the last survivor of my said children and my grandchildren.’

‘3. To pay the remainder of said income to me, the grantor, Isaac Pratt, Junior, during my life.

‘4. Upon my death to pay said remainder of said income in manner, as follows:

‘Said income is to be divided into as many equal shares as there shall be children of mine living at my death, and issue of deceased children of mine, and widows of my sons having no issue by my sons living at my death, the collective issue of each deceased child of mine to represent one child, and take one share.

‘A. To pay one of said shares of said income to my daughter, Ellen J. O. Phinney, during her life, and upon her death, to pay her said share of income to her children and to the issue of any deceased children of hers, until the termination of this trust, as hereinbefore provided; the issue of one child to take one share.’

The trust deed further directed the payment of shares of income to Emily L. Pratt, wife of Isaac Pratt, son of the donor, as long as she shall be either the wife or widow of said Isaac L. Pratt, to David G. Pratt, Edmund T. Pratt and Marland L. Pratt during their lives, with provisions as to the payments of income after their respective deaths. It provided:

‘Should any one of the trusts hereinbefore created terminate before the time fixed for the termination of the entire trust, as hereinbefore provided, by reason of the death of all persons taking thereunder, or otherwise, in that event, the principal of such trust shall be divided and added pro rata to the remaining trust estates, and thereafter be disposed of; both principal and interest, as parts of said trust estates.’

It also directed the payment of income to the several beneficiaries ‘personally, and in no event to the husbands or the wives of the beneficiaries, nor in anticipation,’ forbade the assignmentof interests and prohibited the application thereof through legal proceedings in payment of the debts of the cestuis que trust.

The second deed conveyed real estate in East Boston upon trusts like those expressed in the first deed, excluding, however, the donor's son, Isaac L. Pratt and his issue, and making no provision for his wife. After the death of the donor the income under this trust became payable as follows:

‘My son, Isaac Lowell Pratt, his widow, and his issue shall have no share in said remainder. Said remainder of said income is to be divided into as many equal shares as there shall be children of mine, other than said Isaac Lowell Pratt, living at my death, and issue of deceased children of mine, and widows of my sons having no issue, by my sons, living at my death, and collective issue of each deceased child of mine to represent one child and take one share, excluding said Isaac Lowell Pratt and his widow and issue, as aforesaid.’

The provisions as to Ellen J. O. Phinney and as to the payment of income upon her death do not differ materially from those in the first deed.¹ The other terms pertinent to the issue here in controversy, except as hereinafter indicated, are the same as in the first deed.

Isaac Pratt, Jr., the donor, died on August 26, 1899. His daughter, Ellen J. O. Phinney, died on April 14, 1920. At the time the trusts were created, she had living three children, Horatio H. Phinney, Leslie P. Phinney and Ellen Hildreth Taylor. Horatio H. Phinney died testate on August 13, 1903, leaving a widow and no issue. His will gave all his property to his wife, who died intestate in 1918, and who then was a resident of Brooklyn, New York. Her father, John Condon, one of the defendants, is her sole heir at law and next of kin, and he has been duly appointed, in that state, administrator of her estate. When Ellen J. O. Phinney died there were then living her children Leslie P. Phinney and Ellen Hildreth Taylor, and children and grandchildren of Ellen H. Taylor, all of whom are defendants.

The trustee does not require directions except as to the persons who are now entitled to the shares of the income which were payable to Ellen J. O. Phinney. Edmund T. Pratt and Marland L. Pratt, each of whom is entitled by the express terms of the deeds to shares of the income, are still living. It was stated in argument that Emily L. Pratt, who was living when the bill was filed and against whom it had been taken pro confesso, had died; but no supplemental bill, or amendment setting up that fact, has been filed, and the case is not ripe for instructions as to the persons entitled to the share of the income of the first trust to which she had been entitled. Although David G. Pratt, who was entitled to shares under both deeds, is dead, his widow is still living and has not remarried, and is by express designation entitled to the income payable to him in his lifetime.

It is not necessary to decide whether the right to receive the income payable upon and after...