Putnam v. Story

• Decision Date: 30 January 1882
• Citation: 132 Mass. 205
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: George Putnam, administrator, v. Franklin H. Story & others

132 Mass. 205

George Putnam, administrator, v. Franklin H. Story & others

Supreme Court of Massachusetts

January 30, 1882

Argued September 6, 1881; November, 1880 [Syllabus Material] [Syllabus Material]

Suffolk. Bill in equity, filed December 24, 1879, by the administrator de bonis non with the will annexed of William Burrows, against Franklin H. Story, William G. A. Drake, Emma Geller, Albert C. Woodworth, William B. Bowles, Robert C. M Bowles, Charles S. P. Bowles, Albert G. Bowles, William F. Stetson, Henry C. Stetson and Frances Rogers, for the instructions of the court. Hearing before Endicott, J., who reported for the consideration of the full court the following case, such decree to be entered as law and justice might require:

William Burrows died on October 19, 1837, seised of real and personal estate, and leaving a will, which was duly admitted to probate, appointing his wife executrix, and containing the following clauses:

"Secondly. I give to my beloved, affectionate wife, Betsy Burrows, the rent, income, interest, use and improvement of all my estate, real, personal or mixed, of what kind, name and nature soever, for and during the term of her natural life.

"Thirdly. My will is that at the decease of my said wife all my estate should be converted into money, and one third of the net proceeds thereof deposited in the Massachusetts Hospital Life Insurance Company in the name of Mrs. Mary Thompson, wife of Mr. William Thompson, upon a strict trust, the interest of which third part is to be quarter-yearly paid to the said Mary Thompson, for and during the term of her natural life, and, at her decease, the capital sum to be equally divided among the heirs at law of the said Mary Thompson, share and share alike.

"Fourthly. The residue, being the other two thirds of the net proceeds of the sales of all my estate, I will to be deposited in like manner in the Massachusetts Hospital Life Insurance Company, in the name of my daughter Frances Bowles, wife of William Bowles, upon a strict trust the interest of which in like manner to be quarterly paid to the said Frances, for and during the term of her natural life, and at her decease the capital sum to be equally divided among the heirs of my said daughter, share and share alike."

Mrs. Burrows entered upon and enjoyed the estate of her husband. On April 25, 1838, the Legislature passed a resolve authorizing Mrs. Burrows to sell the real estate of her husband "and the proceeds thereof to invest in the manner prescribed in said will of said William Burrows (for the investment of the proceeds of his said real estate) for the use of said Betsy Burrows, during her life; and, on her decease, for the uses and purposes in said will limited and set forth." By virtue of this resolve, Mrs. Burrows sold the real estate of her husband, and, on February 12, 1845, invested a part of the proceeds in a parcel of land with a dwelling-house thereon. She also executed a declaration of trust declaring that the same was held by her "subject to the same uses and trusts and for the same ends and purposes" as were the lands so sold by her.

Mrs. Burrows died in 1860, intestate; and on December 1, 1860, the plaintiff was appointed administrator of her estate, and also administrator de bonis non with the will annexed of the estate of William Burrows. In his latter capacity, the plaintiff became possessed of certain personal property, one third of which was paid over to the heirs at law of Mary Thompson, who had died before Mrs. Burrows; and the other two thirds were deposited in the Massachusetts Hospital Life Insurance Company upon two policies, by the terms of which the income was to be payable to Frances E. B. Stetson (formerly Frances Bowles) during her life, and after her death the principal was to be paid to the administrator with the will annexed of William Burrows for the heirs of Mrs. Stetson.

The real estate which was purchased by Mrs. Burrows was used by her as a homestead until her death, and at the time of her death was also occupied by Mrs. Stetson, who, upon the death of her mother, purchased the interest of the children and heirs of Mary Thompson in said real estate, taking a quitclaim deed of it from them, and she continued to occupy the same as her homestead until her death in December 1878, with the knowledge of her husband and of all her children. At the time of the death of Mrs. Burrows, her sole heirs at law and next of kin were Mrs. Stetson and the children of Mary Thompson.

Mrs. Stetson had, at the time of her mother's death, seven children, all of whom are still living, and are and were at the time of her own death her heirs at law; namely, Charles S. P. Bowles, Robert C. M. Bowles, William B. Bowles, Albert Gordon Bowles, William F. Stetson, Henry C. Stetson and Frances Rogers.

On the death of Mrs. Stetson, the Massachusetts Hospital Life Insurance Company paid over to the plaintiff the sum of $ 7056, being the amount deposited by the plaintiff, and the plaintiff thereupon paid over to William F. Stetson and Frances Rogers, two of the heirs of Mrs. Stetson, their respective shares, namely, one seventh each of said sum of money; and the remaining five sevenths remain in his hands.

In 1859, the firm of Cushing Stetson's Sons & Company, (consisting of Cushing Stetson, husband of Frances E. B. Stetson, and William, Robert and Charles Bowles,) had failed in business and was largely indebted to one Emma Geller. In consideration of said indebtedness, William, Robert and Charles, together with Albert G. Bowles, on June 2, 1859, executed an assignment, with a covenant for further assurance, to Emma Geller, as security for the moneys advanced by her to the said firm, of all their interest which they then had, or which they might afterwards have, in the estate of their grandfather, William Burrows. The debt of said firm has in no part been paid, and exceeds the amount claimed by Geller in this proceeding. But none of the debt for which this assignment was made was due from Albert G. Bowles, and there was no consideration for his signing said instrument. The assignment has not been recorded, and notice thereof was not given to the plaintiff until after he was notified of the assignments hereinafter referred to.

In 1872, Charles S. P. Bowles, Robert C. M. Bowles, William B. Bowles and Henry C. Stetson, doing business under the name of Bowles Brothers & Company, became bankrupt, and Henry J. Stevens was appointed their assignee; and, in 1873, William F. Stetson quitclaimed to the assignee in bankruptcy of the firm, in discharge of a debt due to the firm from him, all his interest in a certain parcel of land, describing it by metes and bounds, it being in fact the parcel bought by Mrs. Burrows as above stated.

On June 24, 1879, the members of the firm and their assignee in bankruptcy conveyed, by an indenture containing mutual covenants, which it is unnecessary now to state, to the defendants Story and Drake, in trust for the benefit of the creditors of the firm, all the property of the firm, and all the separate real and personal estate, property, credits and effects of the members thereof.

In December 1878, after the death of Mrs. Stetson, Albert G. Bowles, who was then indebted to Albert C. Woodworth in the sum of $ 2000, borrowed of him the additional sum of $ 900, and gave him, as security for that and the preceding loan, an assignment of his rights under the will of William Burrows, and also a deed of his interest in any real estate which he had by virtue of the will of William Burrows.

The case was argued at the bar in November 1880, and was afterwards submitted on briefs.

J. C. Gray (W. C. Loring with him,) for Story and Drake.

H. W Putnam, for Rogers, W. F. Stetson and H. C. Stetson, contended that the limitation to the heirs of Mrs. Stetson was a contingent remainder to persons who could not be ascertained until her death, and that her heirs apparent did not have an alienable interest until that event; and cited Fearne Rem. 289, 366; 1 Prest. Est. 75, 76; 2 Washb. Real Prop. (4th ed.) 562; Manning's case, 8 Rep. 94 b; Lampet's case, 10 Rep. 46 a; Richardson v. Wheatland, 7 Met. 169, 175; Putnam v. Gleason, 99 Mass. 454; ...