Wellman v. Boston Safe Deposit & Trust Co.
| Decision Date | 09 September 1936 |
| Citation | 3 N.E.2d 740,295 Mass. 281 |
| Parties | WELLMAN v. BOSTON SAFE DEPOSIT & TRUST CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Petition for instructions in the probate court by Arthur H Wellman, executor of the will of Nellie P. Carter, deceased. From a decree instructing the executor that no interest on legacy given in trust was presently payable, the Boston Safe Deposit & Trust Company, trustee under the will of Nellie P Carter, appeals.
Decree affirmed.
Appeal from Probate Court, Suffolk County; Dolan, Judge.
A. H. Wellman, of Boston, stated the case.
P. A. Atherton and H. V. Atherton, both of Boston, for Proprietors of Arlington Street Church.
C. M. Rogerson and R. W. Hardy, both of Boston, for Boston Safe Deposit & Trust Co.
The petitioner, who is the executor is the will of Nellie P. Carter, brought a petition for instructions in the probate court. The only one of several prayers for instructions therein contained with which we are here concerned is the following: ‘ Is the income on the trust fund created in Article Fifth of said will to be paid from and after the decease of the testatrix?’ By the fifth article of the will the testatrix gave and bequeathed to a named trustee $100,000 in trust to pay the net income to Stella Jones Webber during her life and upon her death to pay over the fund as she should by will appoint and in default of such appointment to her heirs.
The probate judge entered a decree which instructed the executor ‘ that the legacy given in trust under the Fifth Article of said will is comprehended within the provisions of the Seventy-Fourth Article of said will and that no income or interest is presently payable on said legacy in trust, except such income as may be payable by the trustee under said Article Fifth on such portion of the legacy as has already been distributed to said trustee.’ The trustee has appealed from that decree.
It has long been the general rule in this commonwealth that language in a will expressing a gift of income of a trust fund which the will creates indicates the intention of the testator that the benefitciary should receive the income of the fund from the date of the testator's death. Minot v. Amory, 2 Cush. 377, 382, 383; Lovering v. Minot, 9 Cush. 151, 157; Old Colony Trust Co. v. Smith, 266 Mass. 500, 502, 165 N.E. 657. This rule is, however, not applicable when the will manifests a different intention. Keith v. Copeland, 138 Mass. 303. See, also, Pollock v. Learned, 102 Mass. 49, 55; McDonough v. Montague, 259 Mass. 612, 614, 157 N.E. 159; Old Colony Trust Co. v. Smith, 266 Mass. 500, 502, 165 N.E. 657; Casey v. Genter, 276 Mass. 165, 173, 176 N.E. 782. The rule is in harmony with G.L.(Ter.Ed.) c. 197, § 26 ( Sargent v. Sargent, 103 Mass. 297, 299; Ayer v. Ayer, 128 Mass. 575, 577), which provides that: ‘ If an annuity, or the use, rent, income or interest of property * * * is given by will * * * to or in trust for the benefit of a person for life * * * such person shall be entitled to receive and enjoy the same from and after the decease of the testator, unless it is otherwise provided in such will.’
The question here presented is whether the will adequately expresses the intention of the testatrix that the beneficiary under the fifth article should not be entitled to the income of the trust fund there referred to from the time of the death of the testatrix.
The seventy-fourth article of the will authorizes the ‘ executor to delay the payment of any legacy or of all legacies if he deems delay to be wise for a period not exceeding three (3) years after my decease’ and further provides that ‘ No legacy shall draw or bear interest except from or after the expiration of three (3) years after my decease.’ Unless it is otherwise provided in a will legacies are payable in one year from the death of the testator, Fitch v. Randall, 163 Mass. 381, 40 N.E. 182, Lyford v. McFetridge, 228 Mass. 285, 289, 117 N.E. 589, and interest is payable on pecuniary legacies from the time when, by the terms of the will or by the rules of law, they should have been paid, as an accretion to the legacy and not as a penalty for delay or neglect of the executor in making payment. Kent v. Dunham, 106 Mass. 586, 590; Loring v. Thompson, 184 Mass. 103, 105, 68 N.E. 45.
The testatrix manifestly believed that it was wise to leave to her executor the selection of...
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