Whitwell v. Bartlett

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: BRALEY, J.
• Citation: Whitwell v. Bartlett, 211 Mass. 238, 98 N.E. 98 (Mass. 1912)
• Decision Date: 29 February 1912
• Parties: WHITWELL v. BARTLETT et al.

211 Mass. 238

98 N.E. 98

WHITWELL v. BARTLETT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 29, 1912

COUNSEL

Loring, Coolidge &amp Noble, for appellants.

Felix Rackemann, for Cutler B. Whitwell.

OPINION

BRALEY J.

The settlor provided by the indenture of trust that upon his decease the principal should be equally divided between his three children, William Scollay Whitwell, Jr., Mary Hubbard Whitwell and Elizabeth Tudor. But the shares coming to the daughters were to be retained in trust to pay the income during life, and upon the death of either without having exercised in favor of her husband, if she married, the power of appointment which had been given, the trustees were to transfer her share to her children who attained the age of 21 years, or their issue if they died under that age, to be divided equally. In default of children or grandchildren, the trustees were directed to make distribution among the persons who, if she had died intestate, would have inherited the property under our statutes of descent and distribution. When the settlor died the son received his portion, while the trust continued as to the daughters, until the death of Mary who never married. The trustees then paid one-half of her share to Elizabeth; and William having predeceased Mary leaving three children at his death, they would have inherited equally the remaining half if living at the date of their aunt's decease, January 23, 1908. But while two of them were known to be then living, his son William Scollay Whitwell, 3d, had disappeared, and the trustees, being uncertain as to their duties, petitioned the probate court for instructions. The decree directed them to distribute two-thirds of the remainder to the next of kin thus ascertained, and to hold the residue in trust, accumulating the income, and adding it to the principal for the benefit of the absent heir, or those claiming under him. The petitioner who is his mother and sole heir at law, having been appointed administrator of his estate November 16, 1910, under the presumption as recited in the memorandum accompanying the decree, that he was dead on February 25, 1910, brings the present petition under Rev. Laws, c. 147, § 20, which reads as follows: 'If by the provisions of a written instrument, a trust estate is to be distributed in whole or in part, the probate court may, upon the petition of a party interested, after such notice as it may direct, order the trustee to convert the said estate, both real and personal, or either, into cash and distribute it among such persons as, according to such instrument, are entitled thereto.' The decision depends upon the question whether William Scollay Whitwell, 3d, survived his aunt.

By the express provisions of Rev. Laws, c. 136, § 3, the probate decree was not conclusive of the fact of death. It only adjudicated, that upon presumptive evidence satisfactory to the court, the alleged intestate was not living at the date of filing the application, and that letters of administration should be granted. Jochumsen v. Suffolk Savings Bank, 3 Allen, 87; Day v. Floyd, 130 Mass. 488, 489. It is unnecessary to decide whether independently of this exception the decree under Rev. Laws, c. 162, § 2, would be conclusive upon all questions involved in the adjudication until vacated or revoked by appropriate proceedings instituted in that court. See Waters v. Stickney, 12 Allen, 1, 12, 90 Am. Dec. 122; Gale v. Nickerson, 144 Mass. 415, 11 N.E. 714; Harris v. Starkey, 176 Mass. 445, 447, 57 N.E. 698, 79 Am. St. Rep. 322; Bennett v. Pierce, 188 Mass. 186, 187, 74 N.E. 360; Connors v. Cunard Steamship Co., 204 Mass. 310, 90 N.E. 601, 26 L. R. A. (N. S.) 171, 134 Am. St. Rep. 662, 17 Ann. Cas. 1051. The petitioner's title was not dependent upon the decree, nor was the single justice bound by it so far as it purported to fix the date of...