Tudor v. Vail
| Decision Date | 01 March 1907 |
| Citation | 80 N.E. 590,195 Mass. 18 |
| Parties | TUDOR v. VAIL et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John C. Gray, and Roland Gray, for defendant Marie T. Garland.
Felix Rackemann, for defendant executors.
The plaintiff is the trustee under two indentures signed by James A. Garland, for the benefit of his wife Marie T. Garland, one bearing date September 28, 1904, and the other January 14 1905. The second contains an article as follows: James A. Garland and his wife had been divorced, and when the first indenture was made they were contemplating remarriage, and when the second was executed the remarriage had taken place. He has deceased, leaving a will, and the principal question is whether the trust created by the indentures has terminated. By reason of the second indenture and the action of the parties under it the first has become of little consequence. Possibly its words may throw light upon the meaning of slightly different language in the second, and upon the construction of the settler's will.
It is plain that the trust was not terminated under the provision of clause C of the second indenture; for by the terms of that clause the trust would come to an end only by the execution in James A. Garland's will of a power of appointment under the will of his father, which should secure to his wife 'an income of ten thousand dollars per annum during the term of her natural life.' The ninth article of the will of James A. Garland, which assumes to exercise the power secures this income to her only so long as she shall remain the testator's widow, and makes the provision conditional upon her releasing her rights under the indenture. The trust is not affected by this article of the will.
Clause D of the indenture declares that the trust shall determine 'upon the death of the said James A. Garland, leaving the said Marie T. Galand him surviving, if, in and by his last will and testament, the said James A. Garland shall, otherwise than as above provided in clause C, provided for her an income of ten thousand dollars or more per annum, and she shall elect in writing within one month after the probate of his will to accept such last mentioned testamentary provision.' By the residuary clause of his will he provided for her an income of more than $10,000 per annum, and she elected in writing, within one month after the probate of the will, to accept the provision. While she made her acceptance absolute, she did not admit that she thereby relinquished her rights in the trust fund created by the indenture, but attempted to retain them. The duration of the period for which she should receive income under the residuary clause of the will was stated in these words: 'During her life, so long as she shall remain my widow.' The question arises whether an income which she elects to accept, and which will continue during her life unless she marries again, answers the meaning of clause D of the indenture. The widow contends that nothing less than an income absolutely and at al events for life would answer the requirement of the clause.
It is to be noticed that there is a difference between clause C of the indenture and clause D in this particular. In the former the payment of the income must be during the term of her natural life,' and this provision is to terminate the trust without reference to her wishes, while in the latter the required income is to be the same in form and amount, but it is not stated to be for any particular time, and it terminates the trust only if, within one month after the probate of the will, she elects in writing to accept it. If the two provisions were exactly alike in the use that she could make of them, there is little, if any, reason why one should take effect independently of her wishes and the other should be dependent on her election. If we assume that the clause means an income of thich she...
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