Vinton v. Pratt

• Decision Date: 27 November 1917
• Citation: 228 Mass. 468,117 N.E. 919
• Parties: VINTON v. PRATT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 468

117 N.E. 919

VINTON

v.PRATT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 27, 1917.

Appeal from Supreme Judicial Court, Suffolk County.

Bill for instructions between Alfred C. Vinton, administrator with the will annexed of the estate of William H. Weston, and Marland L. Pratt and others. From the decree of a single justice of the Supreme Judicial Court, Pratt appeals to the full court. Decree ordered affirmed.

Hollis R. Bailey and John H. Stone, both of Boston, for appellant.

Hutchins & Wheeler, of Boston, for American Surety Co. of New York.

W. C. Cogswell, of Boston, for respondents Jenkins and others.

BRALEY, J.

The residuary clause of Nathaniel Weston's will as modified by the codicil, after making certain bequests to his uncle and his uncle's daughters, provided that:

The ‘residue is to be invested, and the income to be paid to my nephews Edward S. Weston, Henry E. Weston and William H. Weston during their lives. As each nephew dies the share in the principal from which he derived his income shall be paid over to his issue, or in default of issue to whomsoever he may by will, devise and bequeath the same or order it paid over. And in default of issue and a testamentary disposal of the same to my heirs at law. If issue take, they take in the same manner as if the deceased had died intestate, possessed of the same.’

William H. Weston died without issue, and exercised the power of appointment as follows:

‘I give and bequeath to Marland L. Pratt of said Boston, so much of may estate, real and personal, and so much of the estate, real and personal, over which I have power of testamentary disposition under the will of the late Nathaniel Weston, as may be necessary to make up the whole, or any balance then outstanding and not repaid, of the sum of twenty-five thousand dollars, invested by said Pratt in the Crows Nest Mining Company's capital stock, for which investment Henry E. Weston and myself became guarantors under the terms of a memorandum of agreement made and entered into by and between said Henry E. Weston and myself of the first part and said Marland L. Pratt of the second part dated the first day of May, A. D. 1897, together with accrued interest unpaid thereon at six per centum as in said agreement mentioned; hereby making said devise and bequest a first charge upon my said estate after the payment of my funeral and testamentary expenses, and directing my executor hereinafter named to ascertain what amount is so outstanding and not repaid upon said investment up to the date of the probate of my will, and as soon as possible to realize the amount so found to be outstanding and not repaid out of my estate, with power to sell and convey so much of my real estate as may be necessary for that purpose after the exhaustion of my personal estate, and to pay said amount to said Marland L. Pratt.’

The estate, however, having been represented to be insolvent and commissioners having been appointed whose report is now pending for confirmation, the plaintiff asks to be instructed whether as administrator with the will annexed he shall pay to Pratt the donee's share of the principal in whole or in part, which has been received from the trustee under the donor's will, or whether this share has become assets of the estate for the benefit of creditors. It is settled that by the exercise of the power the property if necessary could be applied in satisfaction of the donee's debts. Clapp v. Ingraham, 126 Mass. 200;Tuell v. Hurley, 206 Mass. 65, 91 N. E. 1013;Minot v. Treasurer and Receiver General, 207 Mass. 588, 93 N. E. 973,33 L. R. A. (N. S.) 236;Walker v. Treasurer and Receiver General, 221 Mass. 600, 602, 603, 109 N. E. 647;Gardner v. Treasurer and Receiver General, 225 Mass. 355, 114 N. E. 617;Clarke v. Burrell, 226 Mass. 301, 115 N. E. 416, L. R. A. 1917D, 800. The origin of the rule in equity and its application are referred to, and commented on, in Clapp v. Ingraham, where it was said, that although title passes under the will of the donor, yet the rule cannot be set aside, ‘because of doubts of the technical soundness of the reasons on which it was originally established.’ A very full discussion may be found in O'Grady v. Wilmot, [1916] 2 App. Cas. 231, 246, 247, 270. It has become a rule of property, and having been unchallenged for nearly 40 years, we cannot agree with the defendant that it should be overset. Boston Safe Deposit & Trust Co. v. Collier, 222 Mass. 390, 395, 396, 111 N. E. 163. But as he further contends the rule applies only to gratuitous appointees, and that being an appointee for value he is entitled to the bequest notwithstanding the insolvency of the estate, the business relations of the parties referred to in the will which led to the bequest are important. The defendant not only admits, but joins in all the material allegations of the bill, from which as well as from the agreed facts it appears, that the donee and Henry E. Weston executed an agreement under seal reciting that the Westons were promoting the organization of a corporation to operate a gold mine, and agreed when the corporation was organized to deliver to him properly signed and executed ‘twelve thousand shares of the capital stock fully paid and nonassessable for the sum of $25,000.’ They also ‘jointly and severally covenanted * * * to save him harmless thereon, and further to secure the defendant for his investment, guaranteed’ the repayment of the money with interest at 6 per cent. per annum payable annually, the...