Whiteside v. Merchants' Nat. Bank of Boston

• Decision Date: 27 October 1933
• Citation: 284 Mass. 165,187 N.E. 706
• Parties: WHITESIDE et al. v. MERCHANTS' NAT. BANK OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 165

187 N.E. 706

WHITESIDE et al.

v.MERCHANTS' NAT. BANK OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 27, 1933.

Appeal from Superior Court, Suffolk County; Whiting, Judge.

Suit by Alexander Whiteside and another, assignees of Ross Whittier, against the Merchants' National Bank of Boston and another, as trustees under the last will and testament of Albert R. Whittier, deceased, and Ross Whittier. From an adverse decree, defendant last named appeals.

Affirmed.

F. Rackemann and H. M. Davis, both of Boston, for appellant.

W. P. Everts, and C. F. Schipper, Jr., of Boston, for appellee.

RUGG, Chief Justice.

The plaintiffs, as assignees under an assignment in writing made for the benefit of his creditors by the defendant Ross Whittier (hereafter called the defendant), bring this suit in equity against him and the executors of the will of his grandfather, Albert R. Whittier, under which he is a beneficiary, for a decree (1) interpreting that will to the extent of defining the interest of the defendant thereunder and (2) establishing the right of the plaintiffs to that interest of the defendant. The allegations of the bill in effect are that the plaintiffs are assignees under a written assignment as amended whereby the defendant assigned to them all his ‘property and estate, both real and personal * * * wherever situate, both within and without said Commonwealth, excepting only such as by the laws of said Commonwealth is exempt from attachment,’ including, without limiting the generality of the foregoing, ‘choses in action, interests in properties, whether legal or beneficial, and whether fee, leasehold or otherwise * * * and any and all interests in estates or otherwise to which creditors * * * are by law entitled or in which by law they should have an interest, so far as * * * assignable * * * and not exempt by law.’ The assignment is for the benefit of the creditors of the defendant who should assent in writing to its terms, and imposes upon the plaintiffs as assignees the duty of converting the property into cash and distributing the proceeds in payment of the debts owed by the defendant to his assenting creditors. Certain creditors of the defendant appear to have assented to the assignment, but what proportion of them in number or amount is not shown. The will of the testator, who was a resident of Boston, has been duly proved and allowed. There have been joined as defendants the trustees appointed under the will, who hold trust funds of great value. The terms of that trust, set forth in clause Eighth of the will, in substance are that the residue of the estate is given to trustees to pay the income (subject to an annuity which has come to an end) to the testator's widow for life and his children during their lives, with other provisions as to payment of income in case of the death of the widow or any of the children until the termination of the trust. Upon the death of the survivor of the widow and children the trust is to terminate and the balance, subject to a gift to charity, is to be devided ‘equally between the issue of my children then living per stirpes and not per capita,’ excluding one grandchild for whom provision had been made by others. The income of the trust is subject to a spendthrift clause but there is no such provision concerning the principal of the trust. At the date of the assignment by the defendant to the plaintiffs on September 8, 1930, there were living the widow and four children of the testator. Three of these children never married; but the fourth married and had five children, one of whom is the defendant and another of whom is the grandchild excluded from sharing in the principal of the trust.

It is alleged in paragraph 6 of the bill that the plaintiffs are uncertain whether the interest of the defendant in the estate of the testator is a property interest which he could assign, and whether such interest was transferred to them by his assignment.

The defendant filed an answer whereby he admitted all the allegations of the bill, except that as to paragraph 6 he averred that he never had any right or interest in the estate or in the residuary trust under the will of the testator which he could by any means lawfully anticipate, assign, alienate or convey, and he denied that any right or interest of his in the estate and residuary trust under the will was to any extent transferred or conveyed to the plaintiffs. The trustees under the will of the testator filed an answer substantially admitting the allegations of the bill except that as to paragraph 6 they had no knowledge and neither admitted nor denied them. They did not appeal from the decree entered in the Superior Court and have neither argued nor filed a brief in this court, and no counsel have appeared for them. They stand indifferent. The controversy is confined to the plaintiffs and the defendant.

The case was heard in the Superior Court and all the evidence is reported. A final decree was entered reciting that at the hearing no question was raised as to the proper procedure for an interpretation of a written instrument under St. 1929, c. 186, now G. L. (Ter. Ed.) c. 213, § 3, cl. Tenth A, or whether the allegations of the bill made out a proper case for such interpretation, and adjudging (1) that the defendant had an interest in the principal of the trust fund under the will which was assignable and (2) that all the interest of the defendant in that principal passed to and is vested in the plaintiffs.

The plaintiffs argue in their brief in support of the relief sought that prospective purchasers from them of the interest of the defendant in the principal of the trust under the will of the testator are deterred from buying because they entertain the same uncertainties set forth in paragraph 6 of the bill as existing in the minds of the plaintiffs, that as a result the plaintiffs are unable to turn this interest into cash, and that unless they can in some way secure an unimpeachable title to this interest they will be compelled to await the termination of the trust before they can make distribution to the creditors of the defendant as required by the assignment. There is no merit in the objection of the defendant to consideration of these arguments. The defendant filed no demurrer to the bill but joined issue on its allegations by a full answer and proceeded without objection to a trial on the merits. The allegations of the bill are meagre and might well have been more full as to the debts of the defendant, the number and proportion of his creditors who have assented to the assignment, the efforts made by the plaintiffs to sell his interest and the results of such efforts, and perhaps in other particulars. If the sufficiency of the allegations had been properly challenged at an earlier stage, they might have required serious consideration. But it is too late now for the defendant as matter of procedure to raise these objections as to the sufficiency of the bill. Reynolds v. Grow, 265 Mass. 578, 580, 581, 164 N. E. 650,Adams v. Silverman, 280 Mass. 23, 28, 182 N. E. 1, and cases cited.

The defendant assails the constitutionality of the statute under which the proceeding is brought and argues that therefore the court has no jurisdiction to entertain the proceeding. It is not too late to present that question. This court is not justified in deciding a case on its merits unless ‘satisfied that it has been vested by the Constitution and laws of the Commonwealth with jurisdiction over the subject matter to be determined.’ Peabody v. School Committee of Boston, 115 Mass. 383,Attorney General v. Pelletier, 240 Mass. 264, 299, 134 N. E. 407,Maley v. Fairhaven, 280 Mass. 54, 56, 181 N. E. 798, and cases cited.

The title of the statute as first enacted (St. 1929, c. 186) was ‘An Act to provide that the rule making power of the supreme judicial and superior courts shall include the making of rules of procedure for securing the interpretation of written instruments without other relief.’ The statute confers upon the Superior Court power to make a rule ‘providing that an action at law or a suit in equity shall not be open to objection on the ground that a mere judgment, order or decree interpreting a written instrument or written instruments is sought thereby, and providing procedure under which the court may make binding determinations of right interpreting the same, whether any consequential judgment or relief is or could be claimed or not,’ with a proviso not here material. Rule 101 of the Superior Court (1932) has been promulgated appropriately to enforce the terms of the statute. It is assumed that apart from the statute and rule the case at bar would not fall within any recognized head of equity jurisprudence and the court would decline to decide it. Hanson v. Griswold, 221 Mass. 228, 108 N. E. 1035,Hill v. Moors, 224 Mass. 163, 112 N. E. 641.

The facts in the case at bar show color of title to property in the plaintiffs. They hold an assignment of what purports to be property, signed, executed and delivered to them by the defendant. They have a present duty to perform under the terms of that assignment, viz., to convert that property into cash and to apply the proceeds to the payment of the debts of the defendant due to such of his creditors as become parties to the assignment. There is sharp disagreement on the face of the record between the plaintiffs and the defendant because the latter has answered denying specifically that he had any interest in the estate of the testator susceptible of being assigned by him to the plaintiffs, and denying that his attempted assignment conveyed any interest in that estate to the plaintiffs. The facts alleged in the bill have been admitted or found to be true. While the facts are not in dispute, the parties assert diverse views as to their rights arising from those facts. There is an actual and genuine controversy between the active parties....