Scott v. Rand

• Decision Date: 13 April 1874
• Citation: 115 Mass. 104
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Theodosia Scott v. Edward S. Rand, Jr., & another

115 Mass. 104

Theodosia Scott v. Edward S. Rand, Jr., & another

Supreme Court of Massachusetts

April 13, 1874

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Suffolk. Bill in equity brought by Theodosia Scott, suing by her next friend, against Edward S. Rand, Jr., and Charles Scott, alleging:

That the plaintiff was the wife of the defendant Scott; that in 1862, she was adjudged by the Probate Court for the county of Middlesex to be an insane person; that in September, 1871 the plaintiff filed a petition in said Probate Court, praying to be discharged from guardianship, and that she was discharged from guardianship by an order of said court in January, 1872; that the defendant Scott took an appeal from said order, which appeal was waived May 7, 1872, and the decree of the Probate Court affirmed May 14, 1872.

The bill then set forth an indenture of trust signed and sealed by the defendants April 21, 1871, the material parts of which are as follows:

"Whereas Theodosia Scott, the wife of the said Charles Scott, has been adjudged an insane person, and is now as such under the guardianship of William A. Herrick, of the said Boston, who succeeded Isaac Holt, of Cambridge, in the said trusts: and whereas, in time past, while the said Theodosia was under the guardianship of the said Holt, the said Charles Scott sold and conveyed certain parcels of real estate situated chiefly in Newton in said State of Massachusetts, in which parcels of land the dower and homestead rights of the said Theodosia were duly released by the said Holt, guardian, under order had by virtue of licenses from the Probate Court for the county of Middlesex and State of Massachusetts; and whereas the said Charles Scott has always provided liberally for the maintenance and support of his said wife, the said Theodosia, and is now minded and disposed to set apart certain property, the income thereof to be paid to the said guardian of the said Theodosia during the lifetime of him, the said Charles, so that in any event of fortune a comfortable support and maintenance will be secured to her the said Theodosia, during the lifetime of the said Charles: now therefore this indenture witnesseth, that in consideration of the premises and of one dollar to him paid by the said Edward S. Rand, Jr., the receipt whereof is hereby acknowledged, the said Charles Scott does hereby assign, transfer, set over and convey to the said Rand, and his heirs and assigns forever, the following securities and evidences of property, namely, (naming them.) To have and to hold the same to him, the said Rand, and his heirs and assigns forever; but in trust, nevertheless, to hold, manage and invest the same in productive real or personal estate, at his discretion, with full power to sell and convey any real estate of which the trust estate may at any time be composed, to receive the income and profits thereof, and after the payment of all taxes and expenses incurred in the management of said trust estate, to pay over to the guardian of the said Theodosia for the time being, the sum of one thousand dollars per annum, in equal quarterly payments, beginning on the first day of July, 1871, during the life of him the said Scott; the receipt of the said guardian to be a full acquittance to the said trustee for any payments; and the residue of the said net income of the said trust fund remaining after the payment of the said sum of one thousand dollars to said guardian as aforesaid, if any such there be, to account for and pay over to the said Charles Scott, or in such manner as he may direct, at least once in each and every year during the continuance of this trust. And in further trust, upon the decease of the said Theodosia, living the said Charles, to transfer, pay over and convey the said trust fund, with any accumulated income, to him the said Charles, to hold to him and his heirs and assigns forever, free and discharged from all trusts. But if the said Charles shall decease during the lifetime of the said Theodosia, then in trust to transfer, pay over and convey the said trust estate in such manner, to such uses and purposes, and for such estates, as he the said Charles Scott shall by his last will and testament direct and appoint; and in default of such appointment, to transfer, pay over and convey the said principal or trust fund, with any accumulated income, to his heirs at law, free and discharged from all trusts. And the said Charles Scott hereby covenants and agrees to and with the said Rand and his successors in the said trust, that should the net income received from the said trust estate in any year fall below the said sum of one thousand dollars, he the said Scott will make up such deficiency to the said trustee; the intent of this provision being, that the said Theodosia shall in each and every year receive the full sum of one thousand dollars. But if the said Theodosia, her guardian for the time being, or any person authorized by her or acting in her behalf, shall at any time commence legal proceedings against the said Charles Scott, for or on account of the real estate heretofore sold by the said Charles, and in which the dower of the said Theodosia was released as aforesaid, then and in that event, the said trustee is to withhold all payments of income until such time as such proceedings shall have been wholly discontinued. And in the event of the said proceedings continuing more than two years, the said trustee shall pay over the whole of the said principal or trust fund, with all accumulated income, to the said Charles Scott, and this trust shall thereby be terminated. And the said Rand hereby accepts the said trust, and in consideration of the premises, covenants to and with the said Charles Scott, that he will faithfully discharge and perform the duties enjoined upon him by this indenture. It is hereby understood and agreed, that the said trustee shall not be held liable for any loss or depreciation of the said trust estate not occasioned by his fault, but only for wilful negligence and default."

The bill also alleged that on May 6, 1872, the defendant Rand, without right, and in violation of the terms and obligations of his trust as set forth in said indenture, paid, transferred and delivered over all of said trust property and funds to said Scott, and without notice to the plaintiff; and that the said Rand had ever since wholly neglected and refused to pay to the plaintiff the sum of one thousand dollars per annum, or any sum whatever.

The defendants demurred to the bill, and assigned the following grounds of demurrer:

1. That the plaintiff hath not in and by her said bill made or stated such a case as doth or ought to entitle her to any such relief as is thereby sought and prayed for from or against the defendants.

2. That, by the true legal construction of said indenture of trust, said trust terminated on the discharge of the said plaintiff from guardianship.

3. That said bill of complaint does not allege any demand made upon the defendant Rand, by any guardian of said Theodosia Scott, since the time when said bill alleges that said plaintiff was discharged from guardianship.

4. That it appears by said indenture that the defendant Rand only agreed to pay to the guardian of said plaintiff the income of said trust property in quarterly payments, after payment of all taxes and expenses incurred in the management of the trust fund, to the extent of one thousand dollars per annum; and that the bill does not allege that the income of the trust fund in any one year exceeded the taxes and the expense of the management of the trust fund.

5. That it appears by the indenture of trust that it was understood and agreed that the defendant Rand should not be held liable for any loss or depreciation of said trust estate not occasioned...