Rotch v. Rotch

• Decision Date: 16 March 1899
• Parties: ROTCH et al. v. ROTCH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 125

53 N.E. 268

ROTCH et al. v. ROTCH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 16, 1899

COUNSEL

Stimson &amp Stockton, for plaintiffs.

Henry W. Swift, for defendant Abbott Lawrence Rotch.

Horace D. Chapin, for defendants Thomas and Aimée Lamb.

William Caleb Loring and Thomas Nelson Perkins, for defendant Mary Carey.

OPINION

BARKER J.

The executors of the will of Benjamin S. Rotch obtained the instructions of this court as to the construction of his will in the case reported under the name of Rotch v Loring, 169 Mass. 190, 47 N.E. 660. The testator left a widow, two sons, and three daughters. The petition in Rotch v. Loring was made after the death of the widow and of one son; the deceased son having died testate, and leaving a widow and no issue. In that case the principal question was as to the disposition of a fund which the testator had directed to be deposited for his deceased son, to whom the income was payable during the son's life, with provisions for the disposal of the fund at the son's death, under which the court held that the fund then fell into the residue, and was to be divided into five equal parts, of which one part belonged to the deceased son and was to be paid to the executors of his will, one part was to be paid over to the other son, and the three remaining parts were to be paid to the trustees who were appointed to hold the residue of the testator's estate in trust, and that one of those parts was to be held by those trustees in trust for each of the testator's three daughters, as provided in his will. In that decision the general scheme of the will is stated. The ground of the decision was that in the concluding clause of the fourth article of the will which provided that, in case the son who had income of the fund for his life should die without children or issue, so much of the fund as should not be payable to the son's widow should be paid over to the testator's heirs at law, the gift was to those persons who at the time of the testator's death were his heirs at law. Since the former decision, all the share and interest to which the deceased son at the time of his death was entitled, in reversion or otherwise, under the will, in the shares of the residue of his father's estate given by the father's will in trust for his daughters, has been sold and transferred by deed to the brother and the three sisters of the deceased son, in equal shares. One of these three sisters (Edith Rotch) has now died, unmarried and without issue, leaving a will, which has been duly proved, and of which the respondent Mary Carey is executrix, and under which, aside from certain legacies immaterial to the present petition, she is entitled to all the estate of her testatrix. Under the third article of the will of Benjamin S. Rotch, a sum of money was invested in a corporation for his daughter Edith, to be held by the corporation during her life. The direction of the will as to the disposition of this fund at the daughter's death is that: "The deposit made as aforesaid for her benefit shall be transferred, conveyed, assigned, and paid over to her children then living, and the issue of any deceased child, by right of representation; to have and to hold the same to them and their respective heirs, executors, administrators, and assigns, forever. And, in default of any lawful issue then living of such daughter, then the same shall be conveyed, assigned, transferred, and paid over to my heirs at law, as part of the residue of my estate, in the manner hereinafter directed concerning the same." After the death of Edith Rotch the sum so invested for her was paid over to the administrator de bonis non, with the will annexed, of her father's estate; and that administrator has transferred one-fifth part of the fund, less his charges and expenses, to the present petitioners, who are the trustees of the residuary estate of Benjamin S. Rotch, under the fifth article of his will. What has been done with the rest of the fund so invested for Edith Rotch, we are not informed. We understand that the one-fifth of the fund is the share which would go to Edith Rotch as one of the five persons who were heirs at law of Benjamin S. Rotch at his decease, upon the theory that the clause above quoted from the third article of the will gives that fund, upon the death of Edith Rotch without issue, to the persons who at the death of Benjamin S. Rotch were his heirs at law. The court is asked to direct the petitioners what to do with that one-fifth of the fund, and is not asked to direct them as to the disposition of the other share of that fund; nor do those shares appear to be in the hands of the petitioners. Of course, it cannot be contended that in any event Edith Rotch, as one of the five heirs at law, and apart from purchase, is entitled to more than one-fifth of the $100,000, which up to her death was held for her use by the Life Office, which $100,000 then passed to the residue for the purpose of distribution among the testator's five heirs at law. The other matter upon which the petitioners ask the instruction of the court is as to the disposition now to be made by them of that share of their testator's residuary estate which until the death of Edith Rotch they held for her benefit, under the fifth article of the will. The general effect of this article was to divide the residue of the testator's property into five equal shares, one of which was set apart and appropriated for the benefit of each of the testator's five children who survived him. The shares of the three daughters were by the fifth paragraph of this article devised and bequeathed to trustees, of whom the petitioners are the successors, upon trusts with reference to which that paragraph contains these words: "To hold the same to them and their assigns, the survivors of them, and their assigns, and the survivor of them, his heirs, executors, administrators, and assigns, in strict trust for the uses and purposes following, namely: To hold, manage, and improve to the best advantage, and in the manner herein directed, the part, share, or portion of each such daughter *** during her natural life, and to pay the net rents, income, dividends, and profits to her half-yearly, or oftener if convenient, in every year during her natural life, for her sole and separate use, upon her own separate receipt, free from the interference of any husband, and without being subject to his debts, engagements, or control; and her receipt for all payments made to her, whether married or sole, shall at all times be a sufficient release and discharge therefor. And, at and upon her decease, then in trust to convey in fee simple, transfer, assign, and deliver to her lawful issue then living the trust property and estate then held by the said trustees for her benefit, of whatever the same may then consist, in such and so many equal parts that each of her children then living may receive one share or portion, and the lawful issue then living of any deceased child of hers may together receive and hold, by right of representation, the same share or portion to which his, her, or their parent, if then living, would be entitled; to hold the same to them, respectively, and their respective heirs, executors, administrators, and assigns, forever. And, in default of any issue then living of such daughter, *** then in trust to...