Sewall v. Roberts

• Decision Date: 20 June 1874
• Citation: 115 Mass. 262
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles C. Sewall, executor, v. Helen M. Roberts & others

115 Mass. 262

Charles C. Sewall, executor, v. Helen M. Roberts & others

Supreme Court of Massachusetts

June 20, 1874

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Suffolk. Bill in equity by the executor of the will of Robert Roberts, to obtain the instructions of the court as to the disposal of the trust fund hereinafter mentioned. The case was reserved by Ames, J., on the bill, answers and report; and thereby appeared to be as follows:

On June 2, 1825, Nathaniel Curtis and Isaac Clapp, the administrators of Robert Roberts, Senior, calling themselves trustees of Robert Roberts of Boston, the testator, deposited with the Massachusetts Hospital Life Insurance Company the sum of one hundred thousand dollars, and received from the company the following instrument in writing signed by its officers:

"The Massachusetts Hospital Life Insurance Company, in consideration of the principal sum of one hundred thousand dollars received by them of Nathaniel Curtis and Isaac Clapp, trustees of Robert Roberts, of Boston in the State of Massachusetts, in trust, as hereafter mentioned, the receipt whereof is hereby acknowledged, do hereby promise and agree to and with the said N. Curtis and I. Clapp, trustees, their executors and administrators, that the said company shall and will invest the same in bank or other stock, or in real estate, or place the same out at interest on mortgage or other security at the discretion of the directors; and that the said company shall and will yearly and every year during the natural life of said Robert Roberts, of Boston in the State of Massachusetts, pay or cause to be paid to the said Robert in annual payments on the first days of January in each and every year during the natural life of the said Robert (upon his separate order and receipt, to be dated on or subsequent to the several days on which the said several payments shall fall due; which annuity and principal sum are both hereby declared to be inalienable by the respective grantees thereof, and not subject to their debts or control), the first payment to be made on the first day of January next, the same rate of interest on said principal sum as the company shall actually make and receive upon their capital stock paid in and the other property in their possession, including real estate, stocks of the United States, bank or other stock, notes, bonds and mortgages, after deducting all necessary expenses and charges (excepting office rent and the salaries of the company's officers and servants), and all actual losses by bad debts or otherwise, not arising from the actual fault of the company or their servants, and also half of one per centum per annum for the expenses of their office, and the labor, trouble, and responsibility of investing, taking care of and managing said trust properly. The said principal sum received of said N. Curtis and I. Clapp, trustees, to be invested and managed, and the amount of the income thereof to be estimated, ascertained and determined, by the directors of said company, in the way and manner provided in the extract from the article on annuities in trust, printed at the bottom. Interest to commence June 22, 1825.

"And the said company, for the consideration aforesaid, further promise and agree to and with the said N. Curtis and I. Clapp, trustees, their executors and administrators, that in sixty days after proof of the decease of the said Robert, they will assign, transfer and pay the amount of the aforesaid principal sum, (or such part thereof as shall not have been lost by bad debts or otherwise, without the actual fault of said company or their servants,) and all interest then due thereon at the time of his death, in real estate, stocks, notes, bonds and mortgages belonging to said company, all, any or either of them, at the pleasure and discretion of the directors, at the prices at which the same respectively shall stand charged in the books of the company at the decease of said Robert, in the way and manner provided in said extract from said article, to his executor or executors, administrator or administrators, in trust for the special use and benefit of any child or children of said Robert Roberts; if one only, in trust for his or her use and benefit; if more than one, for their use and benefit equally, the legal representatives to take their parent's share; and in case the said Robert Roberts shall die without leaving any issue, then at his decease to pay said principal sum to his mother, Eliza Roberts, for her own use; but in case the said Robert Roberts shall die without leaving any lawful issue, and his said mother shall die before him, then at his decease to pay said principal sum to his executor or executors, administrator or administrators, in trust for the use of his heirs at law and the heirs at law of his said mother, equally to be divided between them." Evidence was introduced upon the question whether the money deposited in trust was derived by the testator by inheritance from his father, a statement of which is unnecessary for the understanding of the questions of law decided.

On July 17, 1855, an indenture was executed under their hands and seals, between the testator and his mother, Eliza Roberts, of the first part, Nathaniel Curtis, Junior, of the second part, and Helen M. Roberts, wife of the testator, of the third part, which, after reciting the terms of the annuity in trust before mentioned, proceeded as follows: "Now this indenture witnesseth, that the said Robert and Eliza Roberts, the parties of the first part, in consideration of one dollar to them severally paid by the said Nath'l Curtis, Junior, party of the second part, and for other good and valuable considerations them thereto moving, in the event of the said Robert Roberts dying leaving his said wife surviving, but without leaving any issue, do hereby severally give, grant, sell, assign and transfer to the said Curtis, his executor or executors, administrator or administrators, all their respective rights, titles and interests in and to said principal sum of one hundred thousand dollars, to hold upon the following trusts; to wit, during the life of the said Helen M. Roberts, party of the third part, to reinvest the same with the Massachusetts Hospital Life Insurance Company, and to collect the incomes or profits arising therefrom, and after paying and deducting a reasonable compensation for his services, to pay over the residue of the income to the said Helen M. Roberts, the party of the third part, during her life, to her sole and separate use, independently of any husband; and upon her decease to convey, pay over and transfer the principal sum to such person or persons as would have been entitled to the same if the said Robert Roberts had deceased at that time, and these presents had not been executed."

Eliza Roberts died in the latter part of 1855, and the testator on March 27, 1865, executed an instrument under his hand and seal, as follows:

"Whereas by an indenture dated July 17, 1855, between me and my mother, Eliza Roberts, since deceased, of the first part, Nathaniel Curtis, Junior, of the second part, and Helen M. Roberts, my wife, of the third part, a conveyance was made by me and my said mother to said Curtis of all our interests in the sum of one hundred thousand dollars, deposited in the Massachusetts Hospital Life Insurance Company, after my death; and whereas by the death of my said mother I have become her sole heir at law, and an interest then contingent in said sum may have since become vested in me:

"Now know ye that, in consideration of the premises and of one dollar to me paid by said Curtis, the receipt whereof is hereby acknowledged, I hereby ratify and confirm the said indenture, and hereby sell, assign and convey to said Curtis all my right, title and interest in said principal sum of one hundred thousand dollars, to hold upon the following trusts: to wit, during the life of said Helen M. Roberts to reinvest the same with said life insurance company, and to collect the income and profit arising therefrom, and after paying and deducting a reasonable compensation for his services, to pay over the residue of the income to the said Helen M. Roberts during her life, and after her decease upon the trusts declared in said indenture."

On May 7, 1864, the testator presented a petition to the Probate Court for Norfolk County, for his appointment as guardian of Ada Parker, and said court on the same day, her parents being both dead, but her grandparents all living and assenting thereto, but without the appointment of any guardian ad litem, or the assent of any one acting as next friend, appointed the testator as guardian, as prayed for. A bond was given, but no inventory was ever returned.

On April 1, 1865, the testator and his wife presented a petition signed by them to said Probate Court, for the adoption of said Ada Parker, she being then under the age of fourteen years, and for the change of her name. This was assented to by the testator as guardian. All the said grandparents who signed their assent to his appointment as guardian were living at the time of the presenting the petition for adoption, and the decree thereon; but nothing appears on the records or files of said court tending to show that said grandparents, or either of them, had any notice or knowledge of such petition or proceedings; no notice or order of notice was issued on such petition for adoption, no guardian ad litem was appointed, and, so far as the records show, no one acted or assented as the next friend of said Ada Parker; and on the same day said court decreed that "from this day said child shall, to all legal intents...