Spring v. Hollander

• Decision Date: 23 November 1927
• Citation: 261 Mass. 373
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: JAMES W. SPRING, trustee, v. T. CLARENCE HOLLANDER & others.

261 Mass. 373

JAMES W. SPRING, trustee, v. T. CLARENCE HOLLANDER & others.

Supreme Judicial Court of Massachusetts, Worcester.

November 23, 1927

September 28, 1927.

Present: BRALEY CROSBY, PIERCE, CARROLL, & WAIT, JJ.

Trust, What constitutes, Under G.L.c. 183, Sections 49, 51. Devise and Legacy, Life estate, Remainder. Real and Personal Property. Capital and Income. Executor and Administrator, Sale of real estate. A testator owning real estate and personal property provided in his will:

"All of my estate both real and personal, I give, devise and bequeath to my said wife to have and to hold to her during her natural life, and I hereby direct that she may use and dispose of so much of the personal property outside of the income thereof as she may desire." A trustee was appointed in 1915 under R.L.c. 127, Section 28, and during the widow's life he sold certain unproductive and unimproved land upon which the widow had paid a substantial sum as taxes out of the income which she had received from the rest of the estate. The widow died and, after her, the remainderman, and the trustee then filed a petition for instructions; and it was held, that

(1) The will did not create a trust in the real estate, and the question did not arise whether there was by implication or otherwise a trust created in the personal property;

(2) It was the widow's duty to pay the taxes upon the land although it was unimproved and unproductive, and her estate was not entitled to be reimbursed for sums so paid;

(3) The widow during her life, after the sale, was entitled only to the income from the proceeds of the sale; the remainderman on her death was entitled to the entire proceeds of the sale which represented the corpus of the realty;

(4) The right to the proceeds of the sale vested in the remainderman at the death of the widow, the life tenant, and the statute under which the sale was made then ceased to be applicable; the property at that time was personalty in fact and the executor of the will of the remainderman, and not devisees under his will, was entitled to it.

PETITION, filed in the Probate Court for the county of Worcester on January 27 1927, by the trustee appointed in 1915 by a decree of that court under the provisions of R.L.c. 127, Section 28, to sell land formerly owned by Lewis D. Jackson, late of Boston subject to a contingent remainder created by his will.

The facts were agreed upon and by order of F.H. Chamberlain, J., the case, without a decision, was reported to this court for determination.

J.W. Spring, for the executors of the will of Mary A. Jackson. T.H. Gage, (C.P. Lincoln with him,) for the executor of the will of Lewis C. Benton, and others.

PIERCE, J. This is a petition for instructions by a trustee appointed by the Probate Court for the county of Worcester in 1915, under the provisions of R.L.c. 127, Section 28, to sell land subject to a contingent remainder. The land in question was part of the estate of Lewis D. Jackson, the material portions of whose will are: "First. All of my estate both real and personal, I give, devise and bequeath to my said wife to have and to hold to her during her natural life, and I hereby direct that she may use and dispose of so much of the personal property outside of the income thereof as she may desire. At the decease of my said wife I give, devise and bequeath as follows: [several bequests follow] . . . Eighth. All the rest, residue and remainder of my property, both real and personal, in existence at the death of my said wife I give, devise and bequeath to said Lewis C. Benton and his heirs and assigns, if he shall be living at the decease of my said wife, but if he shall not be then living and if he shall leave no child or children living at his decease, then and in such case I give, devise and bequeath all said rest, residue and remainder to my three nephews Charles Jackson, Frank L Jackson and John Jackson in fee simple share and share alike."

The real estate involved in the case at bar was a "two thirds undivided interest in 12 acres of vacant land outside business section, City of Worcester" appraised at $600. It was retained by Mary A. Jackson, widow of Lewis D. Jackson, from the death of her husband in 1898 until 1915, when it was sold for $3,228.13 by a trustee appointed by the Probate Court under R.L.c. 127, Section 28, on petition of the widow. Section 31 of this chapter provides that such trustee "shall receive and hold, invest or apply the proceeds of any sale or mortgage made by him for the benefit of the persons who would have been entitled to the land if such sale or mortgage had not been made." Before the sale the widow had paid taxes on the land, to the amount of $280.10, out of the income which she had received from the rest of the estate.

The executors of the will of Mary A. Jackson contend that the amount paid by her for taxes should be first deducted from the amount received at the sale of the land and paid to them; that the balance after this deduction should be apportioned into principal and income, in such manner as to determine what amount of principal, invested at the death of Lewis D. Jackson at the current rate for trust funds, would result in a sum realized by deducting the $280.10 for taxes from the sum for which the land was sold; that the amount so determined as principal should be paid to the devisees under the will of Lewis C. Benton, who was residuary legatee and devisee under the will of Lewis D. Jackson and that the amount so determined as income should be paid to the executors of the will of Mary A. Jackson.

The executor of the will of Lewis C. Benton contends that he, as executor, is, and that Benton's heirs and devisees as such, are not, entitled to the entire fund in the hands of the trustee (the petitioner) to be distributed, whether or not payment of said sum of $280.10 to the executors of the will of Mary A. Jackson shall be ordered, and said apportionment between capital and income shall be decreed. The petitioner asks instructions "as to his duty under the circumstances disclosed."

By the terms of the will of Lewis D. Jackson, his...