Union Trust Co. of Springfield v. Nelen

• Decision Date: 25 May 1933
• Citation: 186 N.E. 66,283 Mass. 144
• Parties: UNION TRUST CO. OF SPRINGFIELD v. NELEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 144

186 N.E. 66

UNION TRUST CO. OF SPRINGFIELD

v.NELEN et al.

Supreme Judicial Court of Massachusetts, Hampden.

May 25, 1933.

Appeal from Probate Court, Hampden County; J. A. Denison, Judge.

Proceeding by the Union Trust Company of Springfield, as executor of the will of William Kavanagh, deceased, against Frank D. Nelen, William E. Murphy, Lucy A. Starr, and others for instructions as to the validity and effect of a testamentary trust and distribution of certain stock or the proceeds thereof. From so much of a final decree as declared the trust invalid and directed distribution of the stock, respondents Murphy and Starr appeal.

Reversed, and executor's requests for instructions answered so far as necessary.R. W. Crowell and T. V. Moriarty, both of Springfield, for respondents Murphy and another.

J. E. Kerigan and L. J. Gordon, both of Springfield, for respondents Nelen and another.

R. A. Bidwell, of Springfield, for guardian ad litem.

PIERCE, Justice.

William Kavanagh, late of Springfield in the county of Hampden and Commonwealth of Massachusetts, died on May 7, 1930, leaving a will which was duly allowed on April 17, 1931. The Union Trust Company of Springfield was appointed executor thereof and qualified by giving bond as required by law.

On April 13, 1932, the executor filed a petition for instructions in the Probate Court, the prayers of which are that the petitioner be instructed (1) ‘as to the validity and effect of the trust created by the thirteenth paragraph of said will subdivisions 5, 6 and 7’; (2) ‘as to whether said trust is a valid trust’; (3) ‘as to whether if said trust is invalid in part it is good in part and as to what extent it is valid and to what extent it is void’; (4) ‘if said trust is invalid as to whether the 1001 shares which are the subject of said trust become a part of the residue of said estate and are given under the residuary clause of said will’; and (5) ‘if said trust is invalid whether it is its duty to sell said 1001 shares and distribute the proceeds thereof as part of the residue of the estate or whether it is its duty to transfer and distribute said 1001 shares specifically to said William Kavanagh Furniture Company’; and that the court will ‘Make such further orders and decrees as the premises may require.’

It appears that notice of the petition was given as ordered by the court; that a guardian ad litem was appointed to represent minors and an incompetent person and persons unascertained; that the respondents Frank D. Nelen, Anna B. Cavanagh, Lucy A. Starr, William E. Murphy, Union Trust Company of Springfield, Massachusetts, trustee, appeared and answered; that the guardian ad litem answered; and that said petition was taken for confessed as against all other respondents, they not having appeared or answered.

After hearing and consideration, the probate judge found ‘that the contemplated beneficiaries under the fifth clause of the thirteen paragraph of said will, Nelen, Murphy and Starr, can take under the terms of the will only if each is (a) alive at that time, (b) in the employ of the company at the beginning of and during the ten year period and at the end of the ten year period unless physically or mentally disabled or incapacitated, (c) not discharged for reasonable or sufficient cause to be determined by said trustee whose decision is final. The possible beneficiaries, Mahoney, Vaughan and Williams, can take only if one or more of the three first named die or fail to so comply. It was not the intention of the testator that Mahoney, Vaughan or Williams should take unconditionally upon the death or failure of either to comply of Nelen, Murphy or Starr. If none of the said persons take, stockholders of record in said corporation and in the employ of the corporation at the end of said ten years are designated to receive in proportion to individual holdings. The testator intended the ultimate estate to vest at the time fixed for conveyance and transfer by the trustees, that is at the end of the ten year period’; and he ordered and decreed: ‘1. That by the terms of the trust set forth in the thirteenth paragraph of said will subdivisions five, six and seven it is impossible that there should be determined before the end of the ten year period allotted therein, to whom the trustee should assign and transfer stock of the company and that since the time of the probating of the will was uncertain and the time of transfer of the stock ‘as soon as expedient after the probate’ is also uncertain and since both the probate and the transfer are directed to be followed by a period of ten years, the rule against perpetuities must be applied and the trust is not valid; 2. That the trust is not valid in part nor good in part; 3. That the one thousand and one shares which are the subject of said trust become a part of the residue of said estate and are to be disposed of under the fourteenth or residuary clause of said will; 4. That as a part of said residuary clause said one thousand and one shares should be transferred and assigned to said William Kavanagh Furniture Company.' At the request of the respondents Lucy A. Starr and William E. Murphy the judge of probate made a finding of material facts which reads: ‘The testator, William Kavanagh, late of Springfield, died May 7, 1930, leaving a will which was duly allowed by the Probate Court, April 17, 1931, and the petitioner was duly appointed executor. The estate is solvent, there are no suits pending against it and all liabilities have been paid except the Massachusetts inheritance tax. There is no realty. The personalty was inventoried at $217,180.18. Outside of these facts the only other material facts before me are set forth in the petitioner's bill. None of the facts alleged in the petitioner's bill were denied by any party and were accepted as true.’ The case is before this court on the appeal of said William E. Murphy and Lucy A. Starr from so much of the final decree as is contained in the paragraphs thereof numbered one, two, three and four, hereinbefore quoted.

The pertinent part of the will which is the subject of this controversy is included in article ‘Thirteenth,’ clause five, subsections(a), (b) and (c). By article ‘Thirteenth’ the testator, of his holdings of one thousand, nine hundred and eighty-one shares of the capital stock of the William Kavanagh Furniture Company, bequeathed nine hundred and eighty shares to certain named employees of that company, and provided, in clause five, that ‘The remaining one thousand and one (1,001) shares of said stock are hereby given and bequeathed to said Union Trust Company of Springfield, Massachusetts, but in trust, nevertheless, upon the following conditions and for the following uses and purposes, namely’ (subsection [a]), ‘* * * my said trustee, as holder of said one thousand and one shares, shall, under the by-laws of said corporation, hold a...