Welch v. Morse
Decision Date | 15 September 1948 |
Parties | WELCH et al. v. MORSE et al. |
Court | United 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.
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:
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:
The petitioners asked for instructions with respect to the following questions:
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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