Second Bank-State St. Trust Co. v. Yale University Alumni Fund

• Decision Date: 06 February 1959
• Docket Number: BANK-STATE
• Citation: 338 Mass. 520,156 N.E.2d 57
• Parties: SECONDSTREET TRUST CO. v. YALE UNIVERSITY ALUMNI FUND et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 57

156 N.E.2d 57

338 Mass. 520

SECOND BANK-STATE STREET TRUST CO. v. YALE UNIVERSITY ALUMNI FUND et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 3, 1958.

Decided Feb. 6, 1959.

Charles Y. Wadsworth, Boston, stated the case.

Richard Wait, Boston, for respondent Yale University Alumni Fund.

Hervey W. King, Boston (Victor H. Kazanjian, Boston, with him), for respondent Second Bank-State Street Trust Co.

John T. Noonan, Jr., Brookline (Alex J. McFarland, Boston, with him), for respondent Mass. Memorial Hospitals.

Vincent P. Clarke, Boston, for respondent Morgan Memorial, Inc.

John A. Perkins, Boston, for respondent Salvation Army of Mass. Inc.

Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.

WILLIAMS, Justice.

The bank, as trustee under an indenture of trust, executed on December 31, 1934, with Henry C. Nutt, asks instructions as to whom and in what proportions the trust fund is payable. The indenture provided that the trustee should pay the income to the settlor for life and upon his death to his brother Frank A. Nutt for his life. Upon the latter's death the balance was to be paid to Yale University Alumni Fund.

Pertinent provisions of the indenture are as follows: 'Said First Party [the settlor] expressly reserves the right to revoke this trust during his lifetime in whole or in part at any time he may see fit by instrument in writing notifying said Second Party [the bank] of such revocation. * * * Said First Party hereby also reserves the right to appoint by will the whole or any part of said Fund so that the same may be disposed of after said First Party's death otherwise than is provided in this instrument.'

'[I]n the event that said Frank A. Nutt shall survive said First Party then during the life of said Frank A. Nutt he shall have the right to demand payments or transfers of all or any part of said Fund to him free and discharged from all trusts the balance of said Fund (if any remaining on the death of said Frank A. Nutt) to go free and discharged from all trusts to the University Alumni Fund of Yale University at New Haven, Connecticut.'

The settlor died on September 26, 1942, a resident of Pittsburgh, Pennsylvania. He left a will dated March 15, 1938, the single dispositive provision of which was, 'I give, devise and bequeath to my brother, Frank A. Nutt of No. 86 Babcock Street, Brookline, Massachusetts, all of my estate, real, personal and mixed, absolutely and in fee simple.' Frank A. Nutt was the sole heir of Henry C. Nutt. The will was probated in the Orphans' Court for Allegheny County, Pennsylvania, and thereafter by ancillary proceedings in Norfolk County of this Commonwealth. Frank A. Nutt was appointed both executor and ancillary executor of the will.

After the death of Henry C. Nutt, the trustee of said indenture of December 31, 1934, continued to hold and administer said trust fund and thereafter paid the net income to or for the benefit of the said Frank A. Nutt or held it upon his directions until his death.

Frank A. Nutt died on July 10, 1955, leaving a will dated January 31, 1946. By the terms of said will two annuities were created, with the remainder of the property to be distributed as follows: Twenty-five per cent to Morgan Memorial Coperative Industries and Stores, Inc., twenty-five per cent to The Salvation Army of Massachusetts, Incorporated, and fifty per cent to the Massachusetts Memorial Hospitals, all respondents in this proceeding. Said will was admitted to probate on August 17, 1955 (Norfolk probate No. 136113), and Second Bank-State Street Trust Company was appointed executor on said date.

The bank prays the following instructions: '1. Whether by his will Henry C. Nutt exercised the testamentary power of appointment reserved to him under the trust of December 31, 1934? 2. In the event that there was such an exercise by Henry C. Nutt, is the estate of Frank A. Nutt now precluded from asserting his rights as appointee by reason of any renunciation by him? 3. In the event that Frank A. Nutt is so precluded from asserting his rights as appointee: (a) Does said trust property pass under the provisions of said indenture of trust of December 31, 1934, to Yale Alumni Fund? (b) Does said trust property pass under the provisions of said will of Henry C. Nutt to Frank A. Nutt? (c) Does said trust property pass through the estate of Henry C. Nutt as intestate property to Frank A. Nutt? (d) Does the trust property pass through the estate of Henry C. Nutt as intestate property to the next of kin of Henry C. Nutt other than Frank A. Nutt? (e) To whom and in what proportions is the trust property payable? 4. In the event Frank A. Nutt did not renounce his interest in the trust property, is the trust property payable to the estate of Frank A. Nutt? 5. In the event that Henry C. Nutt did not exercise the testamentary power of appointment reserved to him, is the trust property payable to Yale Alumni Fund? 6. To whom and in what proportions is the trust property payable? 7. And for such other and further relief as the court deems meet and proper.'

On February 27, 1957, the petition was taken for confessed against all respondents other than the bank as executor of Frank's estate, the Yale...