Spaulding v. Morse

• Decision Date: 08 December 1947
• Citation: 322 Mass. 149,76 N.E.2d 137
• Parties: WICKLIFFE J. SPAULDING, trustee, v. GEORGE D. MORSE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 149

76 N.E.2d 137

WICKLIFFE J. SPAULDING, trustee, v. GEORGE D. MORSE.

Supreme Judicial Court of Massachusetts, Suffolk.

December 8, 1947

November 3, 1947.

Present: QUA, C.

J., DOLAN, WILKINS SPALDING, & WILLIAMS, JJ.

Trust, Express trust: construction. Contract, Construction, For support. Marriage and Divorce, Separation agreement. Equity Jurisdiction, Specific performance, Declaratory relief. Declaratory Judgment.

Under a contract between divorced persons and a trustee giving the custody of such persons' ten year old son to his mother and providing for his maintenance and education by requiring his father to make periodic payments to the trustee in a certain amount until the son should enter an institution of higher education than high school and in a larger amount thereafter during the period of the higher education, the father was excused from making the stated payments to the trustee during a period while the son was serving in the armed forces of the United

States after having completed his "high school grades" and before entering any institution of higher education.

If a certain suit in equity were treated as for specific performance of a contract requiring a father to make periodic payments to a trustee for the maintenance and education of his minor son the final decree therein was erroneous in making an order for payments which were not due at the time of its entry and which might or might not ever become due depending on future contingencies; if the suit were regarded as for declaratory relief as to future rights to such payments, a proper exercise of discretion required the declination of a declaration.

BILL IN EQUITY filed in the Superior Court on November 29, 1946. The suit was heard by Sullivan, J., by whose order the final decree described in the opinion was entered on April 10, 1947.

E. C. Jacobs, for the defendant. N. M. Hussey, for the plaintiff.

DOLAN, J. By this bill in equity the plaintiff, as he is succeeding trustee under an instrument in writing entered into by the defendant and Ruth D. Morse with one Baldwin, as original trustee seeks to enforce the provisions made therein for the maintenance and education of Richard, the minor son of said Ruth D. Morse and the defendant.

The case was heard by the judge upon a statement of agreed facts which incorporated therein a copy of the trust instrument. Its pertinent provisions will be recited hereinafter. The other agreed facts are that "the . . . [plaintiff] is the succeeding trustee in accordance with the terms of said agreement. That the . . . [defendant] has paid the . . . [plaintiff] and his predecessor, C. Harold Baldwin, one hundred dollars ($100) per month in accordance with the terms of said agreement up to February 1, 1946, and that he ceased making payments at that time. That Richard D. Morse, the beneficiary under said agreement, completed his high school grades on February 5, 1946, and he was inducted into the United States Army on February 6, 1946, and has been continuously in the service and that he has not yet entered any college, university or higher institution of learning." The statement of agreed facts concludes thus: "The sole question before the court is whether or not the . . . [defendant] is excused from performance under the agreement while the beneficiary is in the armed services of the United States." After hearing, the judge in findings and order for decree found the facts to be as set forth in the statement of agreed facts and in accordance with his order for decree a final decree was entered: "1. That the . . . [defendant] pay to the . . . [plaintiff] forthwith the sum of fifteen hundred dollars ($1,500). 2. That the . . . [defendant] pay to the . . . [plaintiff], beginning May 1, 1947, the sum of one hundred dollars ($100) per month until such time, if any, as the beneficiary enters college, and, thereupon, and for a period not to exceed four (4) years thereafter, to pay the sum of twenty-two hundred dollars ($2,200) per year to the . . . [plaintiff] payable in monthly payments."

The trust agreement was executed on July 30, 1937. It appears from its recitals that the defendant and Ruth D. Morse were married on March 26, 1921; that on June 14, 1932, Mrs. Morse obtained a decree of divorce from the defendant in the Second Judicial District Court of the State of Nevada, in which decree provision was made for the "care, custody, maintenance and support" of their two children, Merilyn Morse, born July 25, 1923, and Richard D. Morse, born October 11, 1927; and that disputes had arisen between the defendant and Mrs. Morse, as a result of which they entered into the agreement in question with the trustee named. Provision was made in the instrument for a lump sum payment to be made by the defendant to Mrs. Morse in certain instalments as alimony, and it was agreed therein that the defendant should have the custody of the daughter Merilyn.

The question before us for determination is concerned solely with the provisions made therein for the custody, maintenance, and education of the son Richard. The trust instrument provided that his mother was to have the care and custody of Richard "unlimited so far as any interference with the same by the said George D. Morse is concerned, and the said George D. Morse shall have the right to visit Richard at all reasonable times and places, and the said Ruth D. Morse shall not be restricted in the care and custody of her son Richard, and may take him for any period and keep him at any place within the continental limits of the United States. The said George D. Morse shall and will pay to the said trustee in trust for his said minor son Richard the sum of twelve hundred dollars ($1,200) per year, payable in equal monthly instalments on the first day of each month until the entrance of Richard D. Morse into some college, university or higher institution of learning beyond the completion of the high school grades,...