Welch v. Morse

Decision Date15 September 1948
PartiesWELCH et al. v. MORSE et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Appeal from Probate Court, Essex County; John V. Phelan, Judge.

Proceeding by E. Sohier Welch and others, trustees against Cabot Jackson Morse, Jr., and others for instructions as to the disposition of a trust fund created by will. From the decree of probate court giving requested instructions, named respondent appeals.

Decree affirmed with directions.

Before QUA, C. J., and LUMMUS, DOLAN, SPALDING and WILLIAMS, JJ.

R. M. Robinson, of Boston, for petitioner.

T. L. Gannon and F. X. Ahearn, both of Boston, for Cabot Jackson Morse, Jr.

R. G. Dodge, of Boston, for Anna Braden Morse.

J. M. Woolsey, Jr., of Boston, for Mass. Inst. of Technology.

J. M. Russell, of Boston, for President & Fellows of Harvard College.

H. T. Davis and J. D. Merriam, both of Boston, for Museum of Fine Arts.

SPALDING, Justice.

This is a petition by the successor trustees under the will of Marian Hovey for instructions as to the disposition of a trust fund created by her will.

The testatrix died in 1898 leaving a brother, Henry S. Hovey, a sister, Fannie H. Morse, and two nephews, Cabot Jackson Morse and John Torrey Morse, 3d. By article seventh of her will she gave her residuary estate to trustees to pay the income to these relatives in such manner that, in the events that actually happened, Cabot Jackson Morse, the survivor of the group, ultimately became entitled to the entire incomeduring his life. By the same article the testatrix made the following disposition at the death of survivor: ‘At the death of the last survivor of my said brother and sister and my two said nephews, or at my death, if none of them be then living, the trustees shall divide the trust fund in their hands into two equal parts, and shall transfer and pay over one of such parts to the use of the wife and issue of each of my said nephews as he may be will have appointed; provided, that if his wife was living at my death he shall appoint to her no larger interest in the property possessed by me than a right to the income during her life, and if she was living at the death of my father, he shall appoint to her no larger interest in the property over which I have a power of disposition under the will of my father than a right to the income during her life; and the same limitations shall apply to the appointment of income as aforesaid. If either of my said nephews shall leave no such appointees then living, the whole of the trust fund shall be paid to the appointees of his said brother as aforesaid. If neither of my said nephews leave such appointees then living the whole trust fund shall be paid over and transferred in equal shares to the Boston Museum of Fine Arts, the Massachusetts Institute of Technology, and the President and Fellows of Harvard College for the benefit of the Medical School; provided, that if the said Medical School shall not then admit women1 to instruction on an equal footing with men, the said President and Fellows shall not receive any part of the trust property, but it shall be divided equally between the Boston Museum of Fine Arts, and the Massachusetts Institute of Technology.’

While the clause just quoted purported to dispose of the property of which the testatrix had a power to dispose under the will of her late father, George O. Hovey, it was agreed that the petitioners have never received any property under that will and that the fund now before the court comprises only property owned by the testatrix individually.

The brother and sister of the testatrix died respectively in 1900 and 1922. The nephew John Torrey Morse, 3d, died in 1928, never having married and leaving no issue. After his death the other nephew, Cabot Jackson Morse, received all the income of the trust fund until his death on August 21, 1946. He was survived by a widow, Anna Braden Morse, who was born prior to the death of the testatrix, and by a son, Cabot Jackson Morse, Junior, who was his sole issue. He left a will, the material portions of which are as follows: ‘Second: I give to my son, Cabot Jackson Morse, Jr., the sum of one dollar ($1.00), as he is otherwise amply provided for. Third: The power of appointment which I have under the wills of my aunt, Marian Hovey, and my uncle, Henry S. Hovey, both late of Gloucester, Massachusetts, I exercise as follows: I appoint to my wife, Anna Braden Morse, the right to the income during her lifetime of all of the property to which my power of appointment applies under the will of Marian Hovey, and I appoint to my wife the right during her widowhood to the income to which I would be entitled under the will of Henry S. Hovey if I were living.’

The petitioners asked for instructions with respect to the following questions: ‘First: Should your petitioners continue to hold said trust fund created by article seventh of the will of said Marian Hovey? Second: If the answer to the first prayer is in the affirmative, should your petitioners pay the entire net income from said fund to said Anna Braden Morse during her life, or should your petitioners make some other disposition of said net income or any part thereof, and if so, what disposition should your petitioners make? Third: If the answer to the first prayer is in the negative, to whom and in what proportions should your petitioners distribute the principal of said trust fund?’

The decree of the Probate Court was that the petitioners as trustees under the will of Marian Hovey should ‘continue to hold the said fund and administer it upon the trusts under article seventh of the will of Marian Hovey, as appointed by Cabot Jackson Morse, for the benefit of Anna Braden Morse for and during her lifetime.’ The case comes to this court on the appeal of Cabot Jackson Morse, Junior, hereinafter called the respondent.

A summary of the respondent's position is that the intention of the testatrix, as gathered from the will as a whole, was to terminate the trust upon the death of the donee of the power and to pay the principal to the wife and issue; that this was a mandatory power of appointment in the nature of a...

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