Welch v. Henshaw

• Decision Date: 28 February 1898
• Citation: 49 N.E. 659,170 Mass. 409
• Parties: WELCH v. HENSHAW et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 409

49 N.E. 659

WELCH v. HENSHAW et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1898

COUNSEL

John

F. Tyler, for defendants Strong & Hodgkins.

Shepard Stebbing & Storer, for defendants Samuel, Annie M., Joseph P.B., and Elizabeth L. Henshaw.

OPINION

FIELD C.J.

This is a petition or bill for instructions brought by one of the executors of the will of Helen C. Bradlee, late of Boston deceased, Samuel Henshaw and Joseph P.B. Henshaw, the other executors, being made defendants, as they are personally interested in the question submitted. By her will, dated May 29, 1896, Helen C. Bradlee gave the residue of her property to Annie M. Henshaw, E.L. Henshaw, Samuel Henshaw, and J.P.B Henshaw, share and share alike, and all these persons have been made defendants. William L. Strong and William H Hodgkins, surviving executors and trustees under the will of Josiah Putnam Bradlee, also have been made defendants. Nathaniel J. Bradlee, who was an executor and a trustee with them, has deceased. It appears to have been taken for granted by all the parties that there is sufficient property of the estate of Helen C. Bradlee, other than that represented by the certificates hereinafter mentioned, to pay the debts and charges of administration, and to satisfy all the legacies contained in her will, except those in the residuary clause. A part of the residuary clause of the will of Josiah Putnam Bradlee is as follows: "Tenth. All the rest, residue, and remainder of my estate, real and personal, of which I shall die seised or possessed, or to which I may at my decease be in any way entitled, or over which I may have any right of disposal, I give, devise, and bequeath to Nathaniel J. Bradlee, of said Boston, said William L. Strong, and the said William H. Hodgkins, the survivors and survivor, and his heirs, in trust, and to and for the uses and purposes hereinafter set forth, namely: To take charge of the same, and especially of the land, buildings, mills, machinery, and other property situate at Ballardvale, in Andover, in the county of Essex and said commonwealth, now used and improved for manufacturing purposes, etc.; and they shall pay the net income of said business, and all other net income received by them, and not otherwise disposed of by this will, to my said sister Helen during her life, upon her written request therefor; but, if my said sister Helen makes no such request during the continuance of said business, they shall retain and hold said net income and profits as an addition to and part of the principal fund, held by them in trust; and upon her decease, and when said business at Ballardvale has been closed and sufficiently settled to enable them to do so, to pay over, distribute, and convey the property held in trust, with all accumulations and additions, and including therein all contingent interests not herein fully disposed of, as and when they fall in, to such charitable institutions of a public nature as in Massachusetts may legally receive and hold the same, and are not sectarian in character or purpose, and in such proportions as they see fit: provided, however, that if my said sister Helen shall by will, or instrument in the nature thereof, direct that said property, or any part thereof, shall be paid over and distributed to any such charitable institutions, or to any personal friends of hers or mine, the trustees acting under this will shall pay over and distribute it in such manner and in such sums as she shall direct." Under this residuary clause of the will of Josiah Putnam Bradlee, the trustees paid over, from the income of said trust, to Helen C. Bradlee, upon her written request, large sums of money. At the time of her decease there were standing in her name in the Boston Safe-Deposit & Trust Company certain amounts of money represented by certificates of deposit, of different dates and for different sums, amounting in the whole, without including the interest allowed by said company, to $115,000. Some of said certificates were marked, "Not subject to check," and others were not. The dates and amounts of the certificates are as follows:

August 1, 1890 ..... $20,000

August 4, 1891 ...... 10,000

January 28, 1892 .... 10,000

February 3, 1893 .... 20,000

March 16, 1894 ......... 500

March 16, 1894 ......... 500

March 16, 1894 ......... 500

March 16, 1894 ......... 500

August 27, 1894 ...... 5,000

February 11, 1895 .... 2,000

July 16, 1895 ........ 5,000

July 16, 1895 ........ 4,000

July 16, 1895 ........ 5,000

July 16, 1895 ........ 2,000

July 16, 1895 ........ 2,000

July 16, 1895 ........ 2,000

October 21, 1895 ..... 3,000

January 30, 1896 .... 10,000

January 30, 1896 .... 10,000

March 10, 1896 ....... 1,000

March 10, 1896 ....... 1,000

March 10, 1896 ....... 1,000

On many of these certificates there were indorsements of the payment of interest up to January 1, 1896. The statement of the bill which is admitted to be true, concerning the finding of these certificates, is as follows:

"And your petitioner further represents that the executors found said certificates in her trunk or box, kept in her house, in her own custody, during her lifetime; that in said trunk were her certificates of personal property, the deed of her house on Ashburton place, in which she lived, and deeds of other real estate no longer belonging to her; that her will was also in said trunk in an envelope, and the above-described certificates in another envelope, directed, 'To the Trustees of the Ballardvale Property,' inside of which envelope was a smaller envelope, directed to 'Messrs. Wm. L. Strong and Wm. H. Hodgkins, Trustees of Ballardvale Mills'; that all of said envelopes were unsealed; that there was also in the box a paper in these words, viz.:

" 'On the following page are directions, to the trustees of the Ballardvale property, how to dispose of the certificates in my name deposited in the Boston Safe-Deposit & Trust Company, and, if I do not dispose of the whole amount of the certificates

received and deposited in the Boston Safe-Deposit & Trust Company before my decease, the amount of the remaining certificates is to be added to my brother's property, and given to the charitable institutions which I have selected for the residue and the remainder of the property in a testament previously made; directions to the trustees of the Ballardvale property for the disposal of the certificates in my name in the Boston Safe-Deposit & Trust Company:

" 'To the Josiah P. Bradlee Ward, in the Massachusetts Eye & Ear

Infirmary, for a permanent fund ..................................... $10,000

To the J. Putnam Bradlee Ward, in the Massachusetts General Hospital,

for a permanent fund ................................................ 20,000'

"Also another paper, pinned upon the other, with these words and letters

following:

" 'To the MacLean Hospital for a permanent fund ....................... $20,000

To the MacLean

To the'

"These last two papers were probably written by Miss Bradlee before the date of the will, but when your petitioner is unable to ascertain. They were, as well as the will, in her handwriting. The will was dated and executed May 29, 1896, six days before her decease, and was, as far as known, prepared by herself."

It is evident that the money represented by these certificates must have been the absolute property of Helen C. Bradlee, even although it had been derived from the income paid over to her by the trustees under the will of Josiah Putnam Bradlee. It also is evident that the direction to said trustees, found in her trunk, cannot be regarded as an execution of the power given to her in the latter part of the residuary clause of the will of Josiah Putnam Bradlee, because that is a power over the trust property remaining in the hands of the trustees, and these directions are not executed as a "will, or instrument in the nature thereof." There is nothing in the papers before us indicating that Helen C. Bradlee made any will, or instrument in the nature of a will, other than that of May 29, 1896.

The question is whether the facts stated in the bill establish a gift or...