Thomas v. Crosby

• Decision Date: 25 June 1898
• Citation: 171 Mass. 510,51 N.E. 6
• Parties: THOMAS v. CROSBY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 510

51 N.E. 6

THOMAS v. CROSBY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 25, 1898

COUNSEL

Geo. Royal

Pulsifer, for plaintiff.

Charles J. Noyes and E.B. Callender, for respondent Henry A. Thomas Sr.

OPINION

FIELD C.J.

The present bill is not strictly a bill of review, because the present plaintiff was not a party to the first suit, or privy to any of the parties; but the bill may be taken as an original bill, by a plaintiff who alleges that his rights are affected by the decree entered in that suit, and it partakes somewhat of the nature of a bill of review. The deed of trust to which the bill relates was of two parcels of land, with the buildings thereon; and it was executed by Henry A. Thomas and his wife, who signed it in token of her assent and of her release of all right to dower and homestead. After making certain provisions for himself and for himself and his family during his life, he directed the trustee, among other things as follows: "On the death of the said Henry A. Thomas to pay the income of said trust estates, after first paying the interest on said mortgages, taxes, and expenses, to Mary E., the wife, and to the child or children of the said Henry A. Thomas, as follows, viz.: One-third thereof to the said Mary E., and the remaining two-thirds to the child, or, if more than one, to the children, of the said Henry A., the said share to each during their respective lives. And if either of the children dies, his (or her) portion to the surviving child or children, unless he leaves issue living, who shall then take by right of representation. But if all the children and such issue, or the said Mary E., decease, either class living, the other, and whether before or after the said Henry A.'s death; the surviving class to take the whole income during the life of any of its members. On the death of the last survivors of said wife and child or children, or within twenty-one years after the decease of said wife and of the child now living, whichever event shall first happen, then to transfer and convey said trust estates as then constituted, and all accumulations thereof, to and among the heirs of said child or children of said Henry A., if all be then deceased; but, if not, then to such children as shall then be living, and to the heirs of such as may have deceased, in equal shares."

The following clause of the deed of trust is very significant "In the event of the death of the said Mary E., and the child or children of said Henry A., during the lifetime of said Henry A., all...