Sturgis v. Paine
| Decision Date | 03 March 1888 |
| Citation | 16 N.E. 21,146 Mass. 354 |
| Parties | STURGIS v. PAINE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles A. Merrill and Frank P. Goulding, for plaintiff.
The direction to the son's wife is imperative, imports a trust, and gives each of the testator's grandchildren a beneficial interest in common with their mother. Rich v Rogers, 14 Gray, 174, 176; Loring v. Loring, 100 Mass. 341; Buffinton v. Maxam, 140 Mass. 557, 5 N.E. 519; Proctor v. Proctor, 141 Mass. 165, 169, 6 N.E. 849; Jubber v. Jubber, 9 Sim. 503. The son's wife and her children had a vested joint interest in the rents, profits, and income. The words "at her discretion" relate solely to the time and manner of enjoyment, and not to the title. The words "shall in like manner receive" refer to quality of interest of the son's wife, similar to the interest in the income given her husband by the prior clause, and not to quantity of estate or time of receipt alone. If a trust was conferred upon her husband when he received the rents and income, her interest was limited to a trust. Co.Litt. 20 note 3; Lumley v. Robbins, 10 Hare, 624; Woodall v. Woodall, 3 C.B. 349, 379; Milson v. Awdry, 5 Ves. 466; Lewis v. Puxley, 16 Mees. & W. 733 742; Shanley v. Baker, 4 Ves. 732; 1 Jarm. Wills, (5th Amer.Ed.) *747, note q, and cases cited; 2 Rop.Leg. (2d Amer.Ed.) *1502. The direction to her husband is not to pay over, but that it should be received by him, to be applied; whereby is signified the intention of the testator that the income, as such, should accumulate, in lieu of conferring a right upon his grandchildren to maintain an action therefor in assumpsit against their mother, as for a debt. Hinckley v. Williams, 1 Cush. 490, 493. If the direction meant to receive and apply at discretion, the son's wife did not hold the rents and profits or income absolutely, but in trust; and the grandchildren can enforce its due appropriation in part for their benefit in equity although they are not resident with their mother. Chase v. Chase, 2 Allen, 101; Warner v. Bates, 98 Mass. 274, 280; Williams v. Bradley, 3 Allen, 270, 278; Whiting v. Whiting, 4 Gray, 236; 1 Jarm. Wills, (5th Amer.Ed.) *399, and cases cited; Gray, Rest. Alien. §§ 116, 155, et seq.; Parker v. Parker, 126 Mass. 433, 437; and see Thorp v. Owen, 2 Hare, 607, (per WIGRAM, V.C.) The gift of accumulated rents and income, not for education or support, but under claim of absolute title in the donor, is beyond the bounds of any power conferred upon the testator's son or his son's wife, and is in violation of a direction to retain in her own hands the rents and income for application. That a person having a power must exercise it bona fide for the end designed, and that an exercise of the power otherwise is corrupt and void in equity, is a well-established rule. Aleyn v. Belchier, 1 Eden, 132, in 1 Lead.Cas.Eq. pt. 1, *377, and notes. If the quantity of interest in the rents and profits or income belonging to complainant is measured by the exercise of a discretionary power to apply on the part of her mother, she has an interest in having the accumulated income in her mother's hands to be so applied; and, in case of the void execution of such trust or power if conferred by the will, her quantity of interest would be an equal share with the grandchildren, according to the terms of the trust. Loring v. Loring, supra; Hill, Trustees, (3d Amer.Ed.) *68, *494; Brown v. Higgs, 4 Ves. 708; Chase v. Chase, supra. The reservation of the use of the personal property, and the income of the real estate, to Ann C. Paine during her widowhood, followed by a grant of all the testator's property, without reservation or exception, must be gathered from the context. If the reservation is repugnant to the trust by which the son's wife is imperatively directed to receive the income to her own use, and for the education and support of the testator's grandchildren, the trust should prevail, as the later indication, and more certain statement of the final intention of the testator. Bowers v. Porter, 4 Pick. 198, 210; Homer v. Shelton, 2 Metc. 194, 206; 1 Jarm. Wills, (5th Amer.Ed.) *472, and note 1. The testator grants his son's wife the income of the real estate, and points out the trusts upon which she is to receive it. Any other construction would deprive the grandchildren of support after their father's death, unless they consumed the principal of the trust-estate, other than the home farm, upon sale of it by the trustees during the widowhood of their mother; which is contrary to the obvious intention of the testator to postpone their enjoyment of the principal of the trust-estate till the death of his son's wife. The residuary clause is to be looked at as a whole, and not the opening sentence alone. The provision that trustees are to pay over the rents and income to the joint order of the son and his wife, "to be by them appropriated as is before provided," shows that the testator intended them to receive it solely upon the trusts expressed, and, upon its receipt, to be by them so appropriated. Blake v. Dexter, 12 Cush. 559, 568. The intent to provide for the grandchildren is apparent in the provision as to proceeds of lands sold, and in the item relating to the vesting of the title of personal property in the son, as trustee for the grandchildren. The fact that the testator expressly excepted the home farm from the power given his trustees to convert, coupled with the condition of personal occupancy as a requisite to entitle his son's wife to enjoy any part of his property rent free, clearly show that he did not intend to confer more than a conditional right by specific devise. She did not obtain the right or title to the rents of other parts of the same land not actually accepted. This is not the case of life-tenant and reversioner, where the life-tenant is entitled to rents or income by absolute devise. Wilmarth v. Bridges, 113 Mass. 407; 1 Jarm. Wills, (5th Amer.Ed.) *798. The petition by the trustee for leave to sell the home farm was assented to by all parties interested. There was therefore an avowal of her desire not to occupy the homestead farm, and the income of the proceeds was thus placed on the same footing with the rents of the other real estate. She paid for the mansion house out of the accumulated rents and income, and conveyed it as a gift to her son George, who therefore holds it subject to the trust upon the rents and income. Under the will of Frederick W. Paine, the gift of the residue to his wife, "to be at her sole use and disposal," is absolute. But the words, "and will by her own last testament do what is right and just to my children," impose a trust. The words differ from those in Hess v. Singler, 114 Mass. 56, 59; Barrett v. Marsh, 126 Mass. 213, 216; Sears v. Cunningham, 122 Mass. 538; Rose v. Porter, 141 Mass. 309, 5 N.E. 641. The language is peremptory, i.e., "my said wife will," etc. The case is stronger than Warner v. Bates, 98 Mass. 274, 277, where a trust was held. The words state the result of an undisclosed agreement between the testator and his wife, and are obligatory. Such agreement to make a will in favor of their children need not be in writing. Nichols v. Allen, 130 Mass. 211, 213. Distinguish Olliffe v. Wells, Id. 221, 224; Glass v. Hulbert, 102 Mass. 24, 39; 2 Story, Eq.Jur. § 1068; Wellington v. Apthorp, 145 Mass. 69, 13 N.E. 10. They denote at least a confidence or trust committed to his wife, and bring the case within the principle of Wright v. Atkyns, 17 Ves. 255; cited in 2 Sugd. Powers, (3d Amer.Ed.) *172, § 36; Id. *173, § 39, note 1, citing Coates' Appeal, 2 Pa.St. 129; Collins v. Carlisle, 7 B.Mon. 14; Bull v. Bull, 8 Conn. 47. They are not precatory or discretionary; they are imperative. 1 Sugd. Powers, (3d Amer.Ed.) *537 c. 7. § 5, par. 3; Robinson v. Smith, 6 Madd. & G. 194; Malim v. Keighley, 2 Ves.Jr. 333, approved in Warner v. Bates, supra; 2 Story, Eq.Jur. § 1068b. The trifling sums given his children outright, coupled with the statement that he had acquainted his wife with the motive or reasons for the gift of the residue to her, and his further provision for his children after her death, point to a trust. If the words "natural heirs" are used to distinguish the objects of his bounty from legal heirs, it is an estate tail, which is lawful for the testator to create, and does not defeat the estate of the children. Wight v. Thayer, 1 Gray, 284. Nor is the trust contrary to the statute forbidding perpetuities, (Lovering v. Worthington, 106 Mass. 86 88;) and, if it were, the trust is valid, if its execution is kept within proper bounds, (Church v. Grant, 3 Gray, 142; Slark v. Dakyns, 10 Ch.App. 36, 39. The failure of the wife to execute a will in favor of the children would not be the non-execution of a mere power, but the non-fulfillment of a trust, which equity would enforce. Bowers v. Porter, supra; Williams v. Bradley, supra; Brown v. Higgs, supra. The interest of the children is vested. The trust is not to will his estate among his children, or to such as she may select, but to do what is right by all. The case, therefore, falls within the principle of Aleyn v. Belchier, supra, and equity has jurisdiction to protect the property for those ultimately entitled. 1 Perry, Trusts, §§ 249, 250.
W.S.B. Hopkins, for defendants.
In the interpretation of the clause in the will of Dr. William Paine upon which the plaintiff relies, it should be observed that there is a declaration at the outset of the intent of the testator in creating the trust, viz., to secure the property to the grandchildren, and the net income to his daughter-in-law. This is an important factor in the question whether there is a trust implied from the language of the will. Raikes v. Ward, 1 Hare, 445...
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