Worcester Bank & Trust Co. v. Sibley

• Decision Date: 14 September 1934
• Citation: 287 Mass. 594,192 N.E. 31
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: WORCESTER BANK & TRUST CO. v. SIBLEY.

287 Mass. 594

192 N.E. 31

WORCESTER BANK & TRUST CO.

v.SIBLEY.

Supreme Judicial Court of Massachusetts, Worcester.

Sept. 14, 1934.

Appeal from Probate Court, Worcester County; Atwood, Judge.

Petition by the Worcester Bank & Trust Company, as trustee under the will of Alfred S. Pinkerton, deceased, for instructions. From a final decree, entered on the petition by order of a judge in the probate court, Willis E. Sibley, executor of the will of Betsey C. Pinkerton, appeals.

Affirmed.

B. B. Gilman, of Worcester, stated the case.

E. T. Esty, of Worcester, for Worcester Bank & Trust Co. and others.

R. B. Dodge, of Worcester, for Odd Fellows Home of Massachusetts.

W. E. Sibley, of Worcester, for Willis E. Sibley.

F. C. Smith, Jr., G. A. Gaskill, and S. G. Barker, all of Worcester, for Worcester Academy and another.

A. H. Bullock, of Worcester, for Massachusetts Soc. for Prevention of Cruelty to Children, Worcester Branch.

D. W. Lincoln, of Worcester, for Laymen's League of Second Parish of Worcester and another.

DONAHUE, Justice.

The trustee named in the twenty-third clause of the will of Alfred S. Pinkerton has brought a petition in the probate court for instructions. It seeks a construction of that clause and a determination of the question whether the power of appointment there given to the testator's wife was exercised by her in her will in whole or in part and if so to what extent.

The will of the testator, after providing in prior clauses many legacies, by the twenty-third clause gave the residue of his estate in trust and directed that the income from the fund be paid to his wife for life and upon her death to her sister Anna M. Chapin during her life. That clause further provided: ‘I empower my wife to dispose of by her will any residue of said trust fund, whether principal or accumulated income, which shall remain in the hands or possession of said trustee or the successors after the decease of Anna M. Chapin and my wife, clothing her with full authority to carry out by her will my understood desire, but such power is not intended to authorize the distribution of any substantial part of such fund among either her or my next of kin or relatives, the main purpose being that if any of the persons or institutions among whom the residue is to be distributed by this instrument decease or become unworthy of receiving it, or any charitable organization ceases to exist or is improperly managed, or substantially changes its character or present purposes, the fund I designed for it may be transferred in this manner to persons or organizations more in harmony with my present plans. My wish is that it be mainly used for charitable purposes, preference being given to deserving children or young people seeking education or to organizations or agencies having such main purpose in view.’ The clause in question further provided that in the event that the testator's wife did not execute the power given and dispose of the trust fund and its accumulations remaining at the decease of the wife and her sister ‘The residue of said fund after the creation [by the trustee] of * * * three trusts * * * [of $5,000 each] I give and bequeath as follows: * * *’ Then follow legacies to three individuals and to various charitable, religious, educational and fraternal organizations and societies, disposing of the residue of the trust fund.

The testator's wife, who outlived her sister, by will gave legacies to relatives and friends and to various philanthropic, religious, educational and charitable organizations and societies. She gave her household and personal effects to Margarett P. Beede who was a friend but not a relative, the will stating: ‘it being my wish that she should make distribution of such of them as I may designate in accordance with a paper which I intend to leave in my safe deposit box.’ The clause disposing of the residue of the wife's estate reads as follows: ‘Thirty-Third: All the residue of my estate I give and bequeath to said Margarett P. Beede, should she survive me, upon a precatory trust, the terms of which will appear in a letter to her to be left by me in my safe deposit box. Should she die before I do I give and bequeath said residue in equal shares to the Worcester Boys Culb, the Worcester Society for the Prevention of Cruelty to Children, the Worcester Young Mens Christian Association, the Worcester Fresh Air Fund, and the Worcester Young Women's Christian Association, all located in said Worcester.’ The testatrix left no letter addressed to Margarett P. Beede in her safe deposit box relative to the terms of the trust referred to in the residuary clause of the will. No such letter has elsewhere been found. She never communicated to Margarett P. Beede the terms of any such trust.

No oral or documentary evidence was introduced at the hearing before the probate judge. Most of the facts stated in the petition were admitted. The judge's report of material facts states that his ‘findings and decision are based upon pleadings, upon the agreed facts and my inferences drawn’ therefrom. He found that the testator's wife did not intend to exercise her power of appointment given by his will and that she did not actually do so. He entered a final decree which declared that the testator by his will gave to his wife a special power of appointment by her will, that she did not exercise the power, and ordered that the residue of the fund in the hands of the trustee petitioner be distributed as provided in the twenty-third clause of the will of Alfred S. Pinkerton in the event that the power granted was not exercised. The executor of the will of the testator's wife has appealed from that decree.

It is settled in this commonwealth that ‘a general power of appointment is well executed in the absence of anything to show a contrary intention by a general residuary clause in...