Stanwood v. Stanwood

• Decision Date: 31 May 1901
• Citation: 179 Mass. 223,60 N.E. 584
• Parties: STANWOOD et al. v. STANWOOD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 Mass. 223

60 N.E. 584

STANWOOD et al. v. STANWOOD et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 31, 1901

COUNSEL

Hutchins & Wheeler, for complainants Stanwood.

John D Bryant, for defendant Mary L. Dorr.

A. H Latham, for defendant Samuel Henshaw.

OPINION

LATHROP J.

Caroline L. Stanwood, by her will, executed in 1883, devised all her real estate to her son Lemuel, in trust to hold, manage, and improve the same, and the income thereof to collect and receive for the term of 20 years, unless the trust should be sooner terminated according to the provisions of the will and from the net rents and profits to pay in semiannual installments, but without power of anticipation, to each of her two unmarried daughters, Margarette and Annie M., the sum of $600 per annum during said term, or during such portion thereof as they or either of them should remain unmarried, and to divide the remainder of the net income equally between her other children, Mary L. Dorr, Francis Co. Stanwood, and Lemuel Stanwood, '(and either or both my said daughters Margarette and Annie M. as may have married before such period of distribution), until each of my said children shall receive the sum of six hundred dollars per annum, and thereupon the remainder of said net income, if any, to divide equally among all my said children. And at the termination of said twenty years to divide the property, real or personal, held by the trustee under the trust hereby created, equally among my said children and their respective heirs and assigns.' The will also contains this clause: 'And I hereby further authorize and empower my said trustee at any time before the said period of distribution, if he deems it for the best interest of all concerned so to do, to divide the trust property, of whatsoever consisting, or the same, or any portion thereof, to sell at public or private sale, and the proceeds to divide equally among my said children and their respective heirs and assigns, and to terminate this trust.' There are other provisions of the will, which will be referred to later. Lemuel Stanwood died February 20, 1888, leaving surviving him no widow, and as his only heir at law and next of kin his mother, Caroline L. Stanwood, to whom, by will, he devised and bequeathed all the residue of his estate. Caroline L. Stanwood died February 5, 1898, leaving surviving her no husband, and as her only heirs at law and next of kin her children Margarette Stanwood, Annie M. Henshaw, Mary L. Dorr, and Francis C. Stanwood. Annie M. Henshaw died March 12, 1900, leaving surviving her her husband, Samuel Henshaw, and as her only heirs at law and next of kin her brother and sisters. She left a will, by which she gave all her estate, real and personal, to her husband, and he has been appointed executor of her will. The petitioners were appointed trustees in place of Lemuel Stanwood on June 2, 1898. The income of the estate has been more than sufficient to pay the annuity of $600 to each one of the children of the testatrix. The petitioners allege that they deem it for the best interest of all concerned to exercise the power given to the trustee under the will, and to divide the trust property among those persons entitled thereto, if they have the power to do so. The questions asked by the trustees are these: (1) What person or persons are entitled to the income of the trust estate now in the petitioners' hands, and in what proportions? (2) Whether any part of the principal of the trust fund is now distributable; and, if so, to what persons, and in what proportions? (3) Whether the petitioners have the power to divide the trust property, and to determine the trust; and, if so, what person or persons are entitled thereto?

1. There can be no question that one-fourth of the income which had accrued prior to the death of Mrs. Henshaw is to be paid to her husband, as executor of her will. As to the income which accrued after the death of Mrs. Henshaw, we are of opinion that the gift was not to the children as a class with right of survivorship, but that the children took a vested interest as tenants in common. It is a general rule of construction that a devise to the testator's children gives a vested interest, unless the will shows a contrary intention. Gibbens v. Gibbens, 140 Mass. 102, 3 N.E. 1. We find nothing in the will before us to show any intent to the contrary. In Frost v. Courtis, 167 Mass. 251, 45 N.E. 687, the general rule is said to be 'that, when real property is given to several persons by name, to be equally divided amongst them, they take as tenants in common, and not as joint tenants, or as a class.' See, also, Horton v. Earle, 162 Mass. 448, 38 N.E. 1135; Bancroft v. Fitch, 164 Mass. 401, 41 N.E. 661; Shattuck v. Wall,...