Renwick v. Same
| Decision Date | 03 January 1917 |
| Citation | 225 Mass. 380,114 N.E. 720 |
| Parties | RENWICK v. MACOMBER et al. HOWES v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Bristol County; Arthur M. Alger, Judge.
Separate petitions by Harold S. Renwick and Kenneth Howes against William B. Macomber and others to reopen the account of the respondents as trustees under the will of Annie E. Renwick, deceased, and to compel respondents to pay over to petitioners the amount which respondent Macomber claimed under the will of Frederick W. Renwick, deceased. The probate court denied the relief prayed for, and petitioners appealed to the single justice, who, with the consent of the parties, reserved the case for the determination of the full court. Decree of probate court affirmed.
John Abbott, of Boston (S. Robinson, of New York City, of counsel), for petitioner Howes.
J. W. & C. R. Cummings, of Fall River, for petitioner Renwick.
Eugene J. Hadley, of Boston, and Benj. B. Barney, of New Bedford, for respondents.
The testatrix ‘died domiciled in this commonwealth,’ and although the real property was situated in the state of New York, and under the doctrine of equitable conversion the proceeds of any sales by the trustees or of the testatrix in her lifetime are to be treated as land (Thissell v. Schillinger, 186 Mass. 180, 185, 71 N. E. 300), the parties have agreed that the cases are to be decided in accordance with the laws of her domicile. By the will of her husband the testatrix received the larger part of his estate, and his son Stanhope C. Renwick having opposed admission of the will to probate, although his brother Frederick W. Renwick does not appear to have joined, the agreement between her and Stanhope terminating the contest, executed nine days before the date of her will, after reciting that ‘in accordance with what she believes was the desire of her husband in order to secure to his said children maintenance in the future’ she ‘has determined to and has made or is about to make her will by which she has devised to the said Stanhope C. Renwick and Frederick W. Renwick, children of her late husband, all the real estate now unsold and undisposed of by her which was devised to her by her husband by his last will and testament * * * duly proved,’ and that ‘the terms of said devise have been made known to said Stanhope C. Renwick and are acceptable to him,’ she covenanted, ‘that the provision made in her will as aforesaid relative to the devise of real estate unsold shall not be changed during her lifetime, nor shall said will be revoked, changed or modified in respect of the said real estate except by the execution of another will which shall contain the same provisions in respect thereto. * * *’
It is immaterial whether a draft of the proposed will or of the will as executed was ever exhibited to him. The parties interested have acted upon the assumption that in so far as applicable to this portion of her estate the will was executed pursuant to the agreement, which is clearly admissible on the question of her intention. George v. George, 186 Mass. 75, 71 N. E. 85;Lydon v. Campbell, 204 Mass. 580, 91 N. E. 151,134 Am. St. Rep. 702. While the covenant further provides, that with the approval of her counsel she could sell ‘any or all of said real estate,’ and the proceeds were to be held by a trust company ‘upon the trust to apply the net income’ to her use during her life, ‘and upon her death to be held by the executor named in her will upon the trust,’ the unmistakable object of the agreement is to make certain that the property described shall pass by some form of devise to the stepsons Stanhope C. Renwick and Frederick W. Renwick, and to effectuate this purpose the second, third and fourth clauses of the will read as follows:
Second. I give, devise and bequeath all the real estate which I now hold * * * to my executor hereinafter named upon the trust to divide the same into two equal parts, the value thereof to be fixed by him and to convey one of such parts to Stanhope C. Renwick, son of my deceased husband, or in case he shall not then be living to his children, share and share alike per stirpes, subject to the fourth clause of this, my will; and the other of such parts to hold, collect the rents, issues and profits and to apply the same to the use of Frederick W. Renwick, another son of my said husband, during the term of his natural life; and upon his death, if he shall die, leaving child or children, to divide such part among such children, in equal shares, and apply such income thereof, to the use of such child or children respectively, and to convey the share of each as they respectively attain majority; and if there be but one child to convey the same to him on his attaining his majority. And I give to my executor power and authority for the purpose of making such division or partition or as he may deem advantageous for the party interested therein, to sell and convey at such times, upon such terms and in such manner as he shall see fit, at public or privatesale, any or all of the real estate held by him in trust for my stepson, Frederick W. Renwick, or his children, the proceeds of such sale or sales to be held upon the same trusts stated herein. If at the time of my death Frederick W. Renwick shall have died, leaving no issue to survive him, in such case I give and devise to Stanhope C. Renwick the whole of my said real estate and the proceeds thereof.
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