Sibley v. Livermore
| Decision Date | 28 June 1955 |
| Citation | 332 Mass. 730,128 N.E.2d 329 |
| Parties | J. Otis SIBLEY v. Jessie LIVERMORE and others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Irene Gowetz, Worcester, stated the case.
Frank W. Grinnell, Boston, for Massachusetts Historical Society.
Richard W. Mirick, Worcester, for Willard A. Saunders.
Alfred N. Whiting, Worcester, for Amy Place Knight Bruchette and another.
James S. Gratton, Worcester, for J. Otis Sibley, trustee.
Laurence H. Lougee, Worcester, for Nathaniel Draper Whitin Allen and others.
Peter I. Lawton, Newburyport, for John Telford Elliott, administrator, submitted a brief.
Rhodes G. Lockwood, Boston, for Episcopal City Mission and another submitted a brief.
Harold T. Davis and Henry B. Coleman, Boston, for Museum of Fine Arts, submitted a brief.
David G. Colt, Boston, for Elizabeth Howard Blake and others, submitted a brief.
George R. Stobbs, Worcester, and Francis H. George, Pittsfield, for N. E. Conserv. of Music, submitted a brief.
Before QUA, C. J., and RONAN, SPALDING, WILLIAMS and COUNIHAN, JJ.
This is a petition by the surviving trustee of a testamentary trust, established under clause 211 of the will of Albert H. Whitin, late of Northridge, for instructions as to the disposition of the trust fund. The testator, who died on March 6, 1935, left a will containing two hundred twenty-one numbered divisions, described therein as 'clauses.' There were four codicils. The first codicil contained sixty clauses in modification or substitution of clauses in the will and in the last three changes were made in the names of executors and trustees.
By clause 211 of the will, $400,000 was left in trust to pay the income semiannually to the testator's niece Mary Alice Larkin, nee Whitin, during her life with provision that 'At her death, the said trust fund shall be divided in accordance with the residuary clause of this will.' Clause 220 of the will, which contained the provisions regarding disposition of the residue, was revoked by clause 60 of the first codicil and the following clause substituted:
By clause 219 of the will it was provided:
'If any of the legatees named in the foregoing clauses are not living at the date of my death, then the sums which would have belonged to such legatees if living, shall become part of the residue of my estate except as otherwise specified therein.
'If my estate does not amount to a sufficient sum to pay all the foregoing bequests in full, then I direct that the clauses creating trust funds and those making bequests of five thousand dollars (5,000) or more shall be satisfied in full before the others are paid.
'Except as provided in the preceding paragraph, I direct that all bequests under this will shall be paid in full and if at the time any of such bequests are paid, there is any state, national or other law requiring a tax to be paid upon the same, I direct my Executor hereinafter named to pay said taxes from the funds in his hands, included within the residue.'
The same persons were appointed as executors of the will and trustees of the trusts created by the will, and the petitioner is not only the surviving trustee of the trust under clause 211 but also the surviving executor.
On April 28, 1936, the executors, having ascertained that the estate was insufficient to pay all legacies in full, filed a petition in the Probate Court for instructions as to various matters concerning the administration of the estate and the construction of the will and first codicil. On reservation and report without decision to this court it was determined which legacies under the provisions of clause 219 should have preferential payment. Smith v. Livermore, 298 Mass. 223, 10 N.E.2d 117. After stating that it was the duty of the executors to pay to themselves as trustees the amount available for the trust fund under clause 211, the court said, 'since the time for the distribution of the trust fund created by this clause has not arrived, it does not appear that the petitioners require specific instructions as to such distribution at the present time.' 298 Mass. at pages 240-241, 10 N.E.2d at page 127.
The life tenant of that trust, Mary Alice Larkin, died on May 17, 1954, and the time for distribution of the trust fund has now arrived. It is alleged by the petitioner and not controverted in the answers of the respondents that: In accordance with the decision in Smith v. Livermore, supra, and pursuant to the decree after rescript entered in that case, the executors paid to the preferred legatees, as defined in clause 219, ninety-one per cent of their respective legacies less the Massachusetts inheritance taxes upon the same and paid nothing to the deferred or residuary legatees. Ninety-one per cent of $400,000 less the Massachusetts inheritance tax upon the interest of the life tenant was paid to the trustees of the trust created by clause 211. The fund of this trust when established amounted to $352,362.26 being ninety-one per cent of $400,000 less the Massachusetts inheritance tax on the life interest. The petitioner is now converting the trust fund into cash and believes that it will amount to approximately $591,000 by reason of appreciation of investments. 1 There are expenses in connection with the closing and distribution of the trust estate, Federal and Massachusetts income taxes upon the capital gain, and Massachusetts inheritance taxes upon the amounts to be distributed to legatees, all of which must be paid from the fund. Exclusive of clause 211 there are preferred legacies of which the unpaid nine per cent amounts to $107,775. The preferred legacies of which the unpaid forty-two. The Massachusetts inheritance taxes which were deducted from the ninety-one per cent paid amount to $60,193.86. There are one hundred five deferred legacies totaling $124,700.
The petitioner prays that he be instructed:
A. Should the balance of the fund after payment of taxes and expenses be distributed to the residuary legatees or applied to the payment of the deficiencies in the legacies?
B. In what order or for what purposes should this balance be used?
C. In what manner should the taxable percentage, if any, of the capital gain be determined in view of the the fact that at the date of the death of the testator and also at the date of the termination of the trust there were legatees, both preferred and deferred, who were not residents of Massachusetts, and further that such capital gain resulted from the sale of assets subsequent to said termination?
The petition comes to us on reservation and report, without decision by the Probate Court. Except for the surviving executor of the will, it appears that all persons having interests in the fund are named respondents including the members of the State tax commission of the Commonwealth. Many respondents have appeared and answered.
The instructions to be given are substantially the same as those ordered to be given to the executors in Smith v. Livermore, 298 Mass. 223, 10 N.E.2d 117. In that case, to which hereafter reference will be made only by page, all clauses of the will and first codicil were carefully considered, and their proper construction determined. It was only because the distribution of the trust fund under clause 211 did not at that time present a present problem that a decision in reference to it was not made. Regarding clause 3 of the will, whereby a trust was created to pay the income to one Brown for life with provision that 'At her death said fund shall be distributed in accordance with the residuary clause of this will,' we said, 'This clause does not purport to make gifts, after the death of the life tenant, to beneficiaries named in the 'residuary clause' as designated legatees * * *, but rather provides that the fund should be subject in all respects to the provisions of the 'residuary clause". 298 Mass. at page 238, 10 N.E.2d at page 126. ...
To continue reading
Request your trial
-
Kinghorn v. Athorne
...424, 144 A. 523, 524. It is, in short, an integral part of the legacy itself. Kent v. Dunham, 106 Mass. 586, 590; Sibley v. Livermore, 332 Mass. 730, 736, 128 N.E.2d 329. The fact that it may be inconvenient or even impossible to pay a legacy at the expiration of the one-year period is in i......
-
Freeman's Estate, In re, SECURITY-FIRST
...corpus does not fall into the residuum of the estate of the settlor until all general bequests have been fully paid. Sibley v. Livermore, 332 Mass. 730, 128 N.E.2d 329, 332; In re Markey's Will, Sur., 125 N.Y.S.2d 246; note, 118 A.L.R. 352. This rule, though usually applied to the construct......
-
Porter v. Ketchum
...at least one year from the testator's death. Miller v. Parish of the Epiphany, 302 Mass. 323, 327, 19 N.E.2d 46. Sibley v. Livermore, 332 Mass. 730, 736, 128 N.E.2d 329. Since the plaintiff received his legacy prior to the expiration of one year from the date of the death of the testatrix n......
-
First Safe Deposit Nat. Bank of New Bedford v. Comstock
...tenant, a part of the residue. But as we have already pointed out that is not the situation in the case at bar. See Sibley v. Livermore, 332 Mass. 730, 128 N.E.2d 329. The decree of the Probate Court is to be modified to provide that costs and expenses, including costs and expenses of this ......