State St. Trust Co. v. Crocker

• Decision Date: 18 June 1940
• Citation: 306 Mass. 257,28 N.E.2d 5
• Parties: STATE STREET TRUST CO. v. CROCKER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 257

28 N.E.2d 5

STATE STREET TRUST CO.

v.CROCKER et al.

Supreme Judicial Court of Massachusetts, Norfolk.

June 18, 1940.

Suit by the State Street Trust Company, trustee under a trust, against Mary Jane Crocker and others, involving the validity of an amendment to the trust indenture. From a decree, the trustee appeals.

Reversed.Appeal from Probate Court, Norfolk County; J. R. McCoole, Judge.

R. H. Wiswall, of Boston, stated the case.

A. B. Carey and C. W. Morrill, both of Boston, for Mary Jane Crocker and others.

R. G. Dodge and J. V. Spalding, both of Boston, for Nina H. Bigelow,

C. W. Nash, guardian ad litem.

QUA, Justice.

This controversy arises out of two successive attempts to amend an indenture between Prescott Bigelow and the petitioner, dated June 20, 1917, whereby Bigelow assigned three thousand shares of the Andrews Real Estate Trust to the petitioner to hold in trust for the benefit of himself, his wife, and his issue.

The terms of the trust, in brief outline, are these: The trustee is to pay the net income to the settlor during his life and upon his death is to pay three fourths thereof to his widow, Bessie P. Bigelow, and the remaining fourth in equal shares to his son Prescott Bigelow, Jr. and his daughter Elizabeth Bigelow Martin. At the death of the widow the whole income is to be divided between the son and daughter and their issue by right of representation, among whom also final distribution is to be made twenty-one years after the death of the survivor of the settlor, his widow, his two children, and certain named grandchildren. There are cross remainders between the respective lines of descent of the two children. Each child of the settlor, however, is given a power of appointment over his or her proportionate share of the principal, if he or she should die without issue. The settlor reserves to himself, in case ‘at any time’ during his life there should be a failure of issue of either of his children, the right to revoke or amend ‘the trusts hereinbefore contained’ for such child or his issue. Then follows this paragraph: ‘Any of the trusts hereinbefore contained may at any time be amended by a written instrument annexed to an original or copy of this indenture in the possession of the Trustee, signed by all of those of said Prescott Bigelow, his wife Bessie P. Bigelow, and his children Prescott Bigelow, Jr. and Elizabeth Bigelow Martin, who may be living at the time of such amendment, provided, however, that in case at the time of such amendment, said Prescott Bigelow, Jr. should be dead, such instrument of amendment shall also be signed by his issue living at such time of amendment, in case of the minority of any of such issue, their signatures to be made by duly appointed guardian or guardians, and provided that in case said Elizabeth Bigelow Martin should be dead, such instrument of amendment shall also be signed by her issue living at such time of amendment, in case of the minority of any of such issue, their signatures to be made by duly appointed guardian or guardians.’ It is further provided that no income payable able under the instrument shall be alienable or subject to the claims of creditors.

The settlor, his wife, and his son are all deceased. The daughter still survives. The son left issue. Before the death of the settlor's son, he and his sister, the settlor's daughter, under date of December 21, 1936, joined in an amendment to the trust indenture whereby it was provided in substance that upon the son's decease three fourths of his share of the income should be paid to his widow during her life instead of to his issue, the issue to receive only the remaining fourth. After the death of the son, his issue and the settlor's daughter, under date of June 28, 1939, joined in a second amendment to the trust indenture which, if valid, had the effect of revoking the first amendment and for the future restoring the income of the son's half of the estate to his issue as originally provided in the indenture. Both purported amendments were in due form and were executed by those who at the respective dates of each amendments were designated to amend under the terms of the indenture. The trustee asks whether the second amendment is valid and whether the trustee should now distribute the income according to the indenture ‘as amended by the instrument dated December 21, 1936, and also as amended by said instrument dated June 28, 1939.’

The creator of a trust may reserve to himself or grant to others powers of revocation or of modification. Stone v. Hackett, 12 Gray, 227, 232;Kelley v. Snow, 185 Mass. 288, 70 N.E. 89;Seaman v. Harmon, 192 Mass. 5, 8, 78 N.E. 301;Jones v. Old Colony Trust Co., 251 Mass. 309, 146 N.E. 716;Loring v. Blake, 98 Mass. 253; Am. Law Inst. Restatement: Trusts, ss. 37, 331. But it is contended in behalf of the son's widow, who was deprived by the second amendment of the life interest which she acquired by the first amendment, that the testator did not intend a continuing power to amend, but that he intended that there should be only one amendment, whenever made, as to the disposition of the same property, and that such amendment should be final. This question of intent is, of course, to be determined upon a survey of the whole instrument the general plan or scheme of which may in appropriate instances indicate that particular words or phrases are to be read in a sense somewhat different from that which might be attributed to them if they stood alone. Manning v. Manning, 229 Mass. 527, 530, 118 N.E. 676;Eustace v. Dickey, 240 Mass. 55, 72, 73, 132 N.E. 852;Temple v. Russell, 251 Mass. 231, 235, 236, 146 N.E. 679, 49 A.L.R. 1;Crowell v. Chapman, 257 Mass. 492, 495, 154 N.E. 397;Radio Corp. of America v. Raytheon Manuf. Co., Mass., 14 N.E.2d 141.

It seems apparent that the settlor's dominating purpose was to provide for himself, his widow, and his issue. He provided for these objects for a period extending twenty-one years after the deaths of his widow, his children, and three named grandchildren and then provided for final distribution within the circle of these same objects. Nowhere in the dispositions made by himself did he go beyond these objects. He could have left these dispositions final and irrevocable, or he could have reserved to himself alone in his lifetime the power to amend them. But he bore in mind the probability that changed conditions might call for readjustments, and that conditions might change at any period during the long term of the trust. He therefore provided in the paragraph hereinbefore quoted that any of the trusts ‘hereinbefore contained’ might be amended ‘at any time.’ He could have expressly placed the power of amendment within the control of those who might be beneficiaries at the time of any amendment, but instead of doing so he entrusted the amending power at all times to the living members of his own immediate family and to his issue, and he required that those to whom he entrusted the power should act unanimously. In this way needed change could be brought about, and at the same time those whom he desired to benefit would always retain the ability to protect themselves. It seems to us that the same considerations which would persuade him to create such powers as these to amend ‘at any time’ would likewise require that there be power to amend more than once as to the same propery or income during the period of such a trust as this. If flexibility and security were the objects sought, as they must have been, the need for both would continue to the end. It is difficult to believe that the settlor would have taken the pains which he did take to provide this method of adapting the trust to changes of circumstance if he had supposed that immediately upon the deaths of himself and his wife his two children at a single stroke could overthrow his plan, exclude his issue, and permanently establish their new plan beyond recall or alteration. A construction limiting the amending power to a single amendment would thus seem to fall far short of accomplishing the settlor's purpose. The words ‘at any time’ do not necessarily mean at any one time. They may be interpreted as equivalent to ‘from time to time.’ Reed v. Jones, 133 Mass. 116, 117, 119; Smith v. Howell, 60 N.J.L. 384,31 Vroom 384, 388,38 A. 180;Hintz v. Hintz, 7 Cir., 78 F.2d 432. We think that they should be so interpreted here. See Bowditch v. Banuelos, 1 Gray, 220, 231, 232.

We cannot agree with the contention of the respondent Nina H. Bigelow that as the power of amendment refers to ‘the trusts hereinbefore [i. e. in the trust indenture] contained’ it does not apply to the ‘new trusts' in her favor added by the first...