State St. Trust Co. v. Kissel

• Decision Date: 04 February 1939
• Citation: 19 N.E.2d 25,302 Mass. 328
• Parties: STATE STREET TRUST CO. v. KISSEL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

302 Mass. 328

19 N.E.2d 25

STATE STREET TRUST CO.

v.KISSEL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 4, 1939.

Proceeding by the State Street Trust Company, trustee, against Mary J. Kissel and others involving construction of a will. From the decree entered therein, the named defendant appeals.

Affirmed.Appeal from Probate Court, Suffolk County; Prest, Judge.

A. B. Carey, of Boston, stated the case, R. H. Wiswall and C. F. Goodale, both of Boston, for Mary J. Kissel.

V. V. R. Booth, of Boston, for Old Colony Trust Co. et al., executors.

R. Gray, of Boston, for Luke C. MacGuinness, trustee.

D. W. Corcoran, of Boston, for guardian ad litem.

DOLAN, Justice.

This is an appeal from a decree entered in the Probate Court, instructing the petitioner as to its duties with relation to a certain trust estate, held by it as trustee under the fourth and residuary clause of the will of Julia Emma Bradford, late of Boston, deceased (hereinafter described as the testatrix), for the benefit of Samuel Dexter Bradford, who is now deceased.

The testatrix died on August 15, 1886, leaving as her heirs at law a son, John Henry Bradford, now deceased, and three grandchildren, Julia E. Bradford, Samuel Dexter Bradford, and Mary J. Kissel, who were the children of her deceased son, Samuel Dexter Bradford. Her will was duly proved and allowed in 1886. Under its fourth and residuary clause she gave and devised one half her residuary estate to her son, John H. Bradford, and the remaining one half to trustees in trust for the following purposes: ‘they shall hold the same as they receive it or in their discretion sell and invest the same in real estate or personal property at their discretion, in a safe and prudent manner and after paying all expenses incident to the execution of the trust, together with a reasonable compensation for their own services, they shall pay or in their discretion apply and appropriate the net income thereof to the maintenance support and comfort, of such of my grandchildren, children of my deceased son Samuel Dexter Bradford, as shall survive me, share and share alike, for and during the period of their natural lives; the issue of any such deceased grandchild to take the parent's share; it being my purpose and intent that the said trust fund and the income thereof, shall not be liable for or chargeable with any debts contracted by them or either of them and that they shall have no power to sell, assign, transfer or anticipate the same or any part thereof, but all payments of income shall be entirely within the absolute control and discretion of the trustees hereunder; and upon the death of each of such grandchildren, they shall pay over and distribute such portion of the principal of said trust fund as such grandchild dying was entitled to the income of, during its life, to such person or persons as such grandchild by its last will and testament directs and appoints to receive the same, but in no event shall any part of said trust funds by liable for, or be paid or appropriated to or for any debts or liabilities of such grandchildren; and in case any such grandchild shall die and fail to make any such testamentary appointment; then and in such case said trustees shall pay over and distribute the share of such grandchild so dying to and among the issue of such grandchild; and in case such grandchild shall die, leaving no will and no issue, then and in such case the portion of the principal of said trust fund shall remain in and constitute a part of said trust fund; the income to be applied and the principal to be disposed of in like manner as though the then surviving grandchildren or grandchild if any, were the only ones or one for whose benefit this trust was created, so that such survivors or survivor shall receive or have applied for them or it an increased portion of income, and have the right to dispose of by will of an increased portion of capital; and in case of any of such grandchildren dying without a will and without issue and no one of such grandchildren surviving; then and in such case the portion of such trust fund, the income of which such grandchild so dying was at its death entitled to, the income thereof, shall go to my heirs at law in the same manner as they would take the same from me dying intestate.’

The grandchild Julia E. Bradford, later Julia B. Armit, died September 10, 1923, and her share of the trust estate was distributed in accordance with the provisions of the will. Her children or their personal representatives are parties respondent. Mary J. Kissel, the appellant, is the sole surviving grandchild of the testatrix, the grandchild Samuel D. Bradford having deceased May 18, 1935, testate, leaving no widow or issue. His will dated October 22, 1934, was allowed in the Surrogate's Court of the County of Kings in the State of New York on December 31, 1935, and an authenticated copy thereof was filed and recorded in our county of Suffolk and letters testamentary were issued thereon to the Old Colony Trust Company and Jacob Rosenberg.

The pertinent provisions of the will of Samuel are as follows: ‘Third: As to the fund set apart and held in trust for my use during my life under the Will of my father, Samuel Dexter Bradford; and as to the fund set apart and held in trust for my use during my life under the Will of my grandmother, Julia Emma Bradford, and pursuant to the provisions of the said Wills, over and in respect to the respective principals of which funds I was given a power of testamentary appointment, I hereby exercise said power of appointment given to me in each of said Wills, and hereby give, devise and bequeath ot Thelma Cooper, now residing at Hotel Empire, Broadway and 63rd Street, Borough of Manhattan, City and State of New York the sum of thirty Thousand and 00/100 ($30,000.) dollars. In the event that the said Thelma Cooper should predecease me, then and in that event I give, devise and bequeath the said sum of $30,000. to the said Thelma Cooper's sister, Bessie Cooper, of 40 South Pine Street, Hazelton, Pennsylvania, and in the event of said sister's death, the said sum of $30,000. is to go to the estate of the said Thelma Cooper. Fourth: as to the fund set apart and held in trust for my use during my life under the Will of my father, Samuel Dexter Bradford, and at to the fund set apart and held in trust for my use during my life under the Will of my grandmother, Julia Emma Bradford, and pursuant to the provisions of the said Wills, over and in respect to the respective principals of which funds I was given a power of testamentary appointment, I hereby exercise said power of appointment given to me in each of said Wills, and hereby give, devise and bequeath to Jacob Rosenberg, of 70 Pine Street, Borough of Manhattan, City and State of New York, the sum of Five Thousand and 00/000 ($5,000.) dollars. Fifth: I give, devise and bequeath all the rest, residue and remainder of the said respective principals of the said trust funds to Percy D. Atherton of 541 Boylston Street, Boston, Massachusetts. Sixth: I am making no provision for any of my blood relatives for the reason that I do not feel that they have treated me with the kindness and consideration to which I was entitled.’

The petition was heard on the facts therein alleged, statements and stipulations of counsel, and certain exhibits, all of which appear in the record. The judge filed a report of facts in substance as follows: At the time of the execution of the will of Samuel D. Bradford, hereinafter described as the donee, he was indebted to the appointee Rosenberg in the sum of $5,000; to the appointee Cooper in the sum of about $30,000, and to the residuary appointee Atherton in the sum of $23,490.50 and interest. The provisions for them were made by the donee in consequence of agreements made by him so to satisfy their claims. The judge specifically found that the relation of debtor and creditors existed between the donee and them at the times of the execution of the will of the donee and of his death.

After hearing, the judge...