Proctor v. Lacy

• Decision Date: 13 March 1928
• Citation: 263 Mass. 1,160 N.E. 441
• Parties: PROCTOR et al. v. LACY et al. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 1

160 N.E. 441

PROCTOR et al.

v.LACY et al. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

March 13, 1928.

Appeal from Probate Court, Suffolk County; Wm. Prest, Judge.

Petition by Thomas W. Proctor and others, trustees, for instructions as to the construction of the will of Wallace F. Robinson, deceased, opposed by Frank R. Lacy and others. Decree for petitioners, and opponents appeal. Affirmed in part, and modified in part.J. J. Kaplan, of Boston, and F. A. Fisher, of Lowell, for appellants Lacy and others.

E. O'Callaghan and F. E. Dickerman, both of Boston, for appellant First Nat. Bank of Boston.

S. L. Whipple, of Boston, Wade Keyes, of Reading, Vt., and E. O. Proctor, of Boston, for appellants Whitten and others.

G. S. Fuller, of Boston, for appellant Blair.

R. Grant, of Boston, for appellees.

SANDERSON, J.

The questions to be decided relate to the construction of certain clauses in the will of Wallace F. Robinson. The material facts appear in allegations of the petition admitted in the answers and in statements of counsel made to the judge of probate.

The testator died in 1920, survived by his son and only heir at law, Harry E. Robinson, who died in 1927. This son married after the testator's death and left a widow but no children surviving him. Another son died in 1893, unmarried. The will was executed August 15, 1918. The testator after disposing of a part of his property gave the residue to trustees upon the following trusts:

‘Clause a. To pay out of the net income from said trust property quarterly or oftener in their discretion to my son Harry E. Robinson for the term of his natural life the sum of forty thousand (40,000) dollars annually.

‘Clause b. To pay out of the remainder of the net income from said trust property quarterly or oftener in their discretion to Harriet E. Blair aforesaid for the term of her natural life the sum of four thousand (4,000) dollars annually.

‘Upon the decease of my son Harry E. Robinson if at such time the said Harriet E. Blair is living, I direct my trustees hereinafter named to set apart as a distinct fund out of the remainder of said trust fund the sum of one hundred thousand (100,000) dollars and to pay the net annual income thereon quarterly to the said Harriet E. Blair for the term of her natural life; and upon her decease the principal of the said trust fund with its accumulations if any created for her benefit shall fall into and become a part of the residue and remainder of my estate to be disposed of as hereinafter provided.’

The testator then made certain provisions against the alienation of this income by any payee thereof. In an earlier clause of the will, a trust fund of $2,000 had been established for George W. Bordley, an employee who died in 1925.

The first and third questions asked were in substance whether upon the death of Bordley it was the duty of the petitioners to distribute any portion of the trust property held by them, and whether because of the death of Harry E. Robinson the trustees should now distribute among the personsentitled thereto the residue of the principal of the trust properly with accumulations. The judge of probate, in answering these questions, ordered that the corpus of the George W. Bordley trust should be added to the residue and that the trustees should, owing to the death of Harry E. Robinson, now distribute the residue.

Since the case was argued in this court, the First National Bank of Boston, executor of the will of Harry E. Robinson, has waived its appeal and assented to the affirmance of the decree of the probate court entered on the petition for instructions, and counsel for all the appellants have stated in writing that they understand as a result of this waiver there is no appeal pending before this court with respect to instructions numbered 1 and 3 of the decree of the probate court, leaving for decision only the appeals with reference to instructions numbered 2 and 4. The executor of the will of Harry E. Robinson was the only party contending that the distriction of the residue should be made on the death of Bordley. The first question remaining to be decided is whether the trust fund of $100,000 for Harriet E. Blair was intended by the testator to be additional to the other provisions for her or was intended to be in substitution for and in reduction of the earlier provisions.

It appeared that the beneficiary, Harriet E. Blair, had been engaged to be married to the son of the testator who died in 1893, and that after the death of the testator's wife in 1910, at his invitation Miss Blair took charge of his house and continued in charge until his death, being treated by him as a daughter. At the time of the testator's death she was about fifty-three years of age and the testator's surviving son was then forty-eight. A legacy of $25,000 was given Miss Blair in addition to the provisions for her in the residuary clause. The testator provided that the trusts established for the benefit of his son and Miss Blair should have priority and preference in and over the other provisions for the disposition of the residue and that if the income for their benefit should fall below $40,000 and $4,000 annually, as therein provided, the trustees were authorized to resort to the principal of the trust fund to make up any deficiency in such income in any year during the lives of his son or Miss Blair or either of them.

‘Separate provisions of a will in favor of the same legatee are to be considered cumulative, unless a contrary intention is apparent from the terms of the will.’ In re Bates, Petitioner, 159 Mass. 252, 257, 34 N. E. 266, 267;Westgate v. Farris, 189 Mass. 587, 589, 76 N. E. 223. The intention of the testator that the trust created to provide an annual payment of $4,000 was not to cease at the death of Harry E. Robinson was indicated by the provision authorizing the trustees to resort to the principal to pay this income if in any year during Miss Blair's life the income was insufficient to pay it. The will directs that this sum of $100,000 shall be set apart as a distinct fund out of the remainder of the trust fund, an expression which would naturally be used if the trust first established was to be continued after the death of Harry E. Robinson for the purpose of earning income to pay the annual sum of $4,000 to Miss Blair. The words of the will that at Miss Blair's death this $100,000 fund is to ‘fall into and become a part of the residue and remainder,’ suggest that the testator understood that then there would be a residue or remainder for it to fall into. The direction to set apart this sum as a distinct fund indicates an intention to create a new or additional fund, and there is no clear implication in the will that upon the death of the son all trusts were to end except the one created at that time. In our opinion the testator intended that the $100,000 trust fund for Harriet E. Blair should be additional to all other provisions made for her.

The remaining question relates to the division of so much of the trust fund as should not be distributed. The testator provided, in substance, that as and when the trusts or any one of them created under the will should cease to exist, the trustees should ‘convey, transfer, distribute and divide, freed and discharged of all trust in equal shares per capita to and between my legal heirs then surviving who are to be determined by the laws of Massachusetts relating to the descent and distribution of property as then in force; always however excepting therefrom in such distribution Charles O. Whitten my nephew and he not surviving the issue if any of said Charles O. Whitten.’ The testator's evident intention was that for this purpose his heirs should be determined at the time of distribution, rather than at the time of his own death (White v. Underwood, 215 Mass. 299, 102 N. E....