Welch v. Morse

• Decision Date: 15 September 1948
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: E. SOHIER WELCH & another, trustees, v. CABOT JACKSON MORSE, JUNIOR, & others.

323 Mass. 233

81 N.E.2d 361

E. SOHIER WELCH & another, trustees, v. CABOT JACKSON MORSE, JUNIOR, & others.

Supreme Judicial Court of Massachusetts, Essex.

September 15, 1948

May 4, 1948.

Present: QUA, C.

J., LUMMUS, DOLAN SPALDING, & WILLIAMS, JJ.

Power, Devise and Legacy, Power. Trust, Trust created by donee of power.

An exercise of a power to appoint property is not invalid merely because it is partial and does not exhaust the power.

Under a will establishing a trust and directing that at the death of the survivor of a group of income beneficiaries, including a nephew of the testatrix, the trustee should "transfer and pay over . . . [a part of the trust fund] to the use of the wife and issue" of the nephew "as he may by will have appointed; provided" that, if the nephew's wife had been living at the death of the testatrix, he should "appoint to her no larger interest" in the appointive property "than a right to the income during her life," a provision in the will of the nephew, who had died leaving a wife and son surviving, appointing to his wife, who had been living at the death of the testatrix, the income of all the appointive property during her life, but not otherwise dealing with that property, constituted a valid partial exercise of the power; all the group of income beneficiaries having died, the appointive property must be held for administration by the same trustee for the benefit of the nephew's wife during her life, and its ultimate disposition left to be determined by future events.

PETITION, filed in the Probate Court for the county of Essex on August 4, 1947.

The case was heard by Phelan, J. R. M. Robinson, stated the case.

T. L. Gannon, (F.

X. Ahearn with him,) for the respondent Cabot Jackson Morse, Jr.

R. G. Dodge, for the respondent Anna Braden Morse. J. M. Woolsey, Jr., for Massachusetts Institute of Technology.

H. T. Davis &amp J.

D. Merriam, for Museum of Fine Arts; and J.

M. Russell, for President and Fellows of Harvard College, submitted a brief.

SPALDING, J. 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 income during his life. By the same article the testatrix made the following disposition at the death of the 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 by 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 women ^[1] 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 the 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...