Kelley v. Snow

70 N.E. 89, 185 Mass. 288, 1904 Mass. LEXIS 805

• Court: Massachusetts Supreme Judicial Court
• Decided: March 9, 1904
• Status: Published

Opinion

Hammond, J.

1. The trust deed recites that it is executed “ for a valuable consideration,” contains words apt to convey the property, is under seal, which imports a consideration, and was delivered to Kelley, the transferee, who received the same and agreed “ to carry out all the trusts therein stipulated.” As between the parties, therefore, the legal title to the property passed to Kelley even without delivery; and, so far as respected the form of the transaction, the trust was completely created. Upon its face the trust was valid notwithstanding the provisions that the donor during her life should have the use of the property and collect the income of the bank deposits, and the further provision that she should have the power to change the “ dispositions at any time upon written notice to ” Kelley. Stone v. Hackett, 12 Gray, 227, 232.

It is urged however by the husband of the donor that the trust was invalid because it was in the nature of a testamentary instrument, and moreover was in fraud of his rights. It appears from the report of the master that the wife had determined to change the disposition of her property provided for by her will and codicil of June 23,1892, but her husband refused to consent to the changes she desired to make. Whereupon, “ by advice of counsel, and with the view to make the desired changes in a manner which would be effective without her husband’s consent, she executed ” this trust deed in duplicate, giving one copy to Kelley and retaining the other. There can be no doubt of her intention. She intended to put this property beyond the control of her husband, even if in doing that it was necessary to limit her own control, or change her relation towards it. She was determined that he should have no power to say where it should go, either during her lifetime or after'her death, and in the light of the facts disclosed in the report it is not difficult to see the grim determination with which she went to work. She transferred the legal title to Kelley, reserving to herself certain beneficial rights. The legal title passed at once,' and all beneficial interest ceased at her death. It was a present conveyance which took effect in her lifetime. She fixed then the terms of the trust. It is true that she had the power to change its terms, but the power was conditioned upon giving written notice to Kelley. This condition, especially when taken in connection with the entire absence of any express power by will, shows that the power was to be exercised and the changes were to take effect in her lifetime and not by way of a will. In view of the purpose of the donor, the circumstances surrounding the transaction, the language of the instrument, the nature of the power given to her, it is clear that the instrument was not testamentary in its nature, but was a present conveyance of property taking effect during the lifetime of the donor, and that it was made in good faith for that purpose. Nor is the trust invalid as against the husband. Under our statutes the right of a married woman over her personal estate during her lifetime is absolute so far as respects her husband. She may convey it or give it away upon such terms as she pleases, provided always the conveyance be real and not colorable and is made to take effect in her lifetime. Leonard v. Leonard, 181 Mass. 458. The case is distinguishable from Brownell v. Briggs, 173 Mass. 529. The trust therefore was a valid trust at the time of its creation.

It existed at the time of the donor’s death. While it is true that Kelley after keeping his duplicate original of the instrument for two years returned it to the donor at her request, the master finds that her purpose in requesting its return does not appear, and it is evident that as late as June 28,1901, several years after the return, she regarded the trust as still existing, for in her will executed by her on that day she attempts to cancel and discharge the trust agreement. But the return of the agreement without more would not change the legal title which was in Kelley nor the rights of the beneficiaries. The attempted revocation of the trust was void because made by will and no notice was given to Kelley during the life of the donor. The trust, therefore, at the time of the death of the donor, existed as it was originally created. By her death her beneficial life estate was determined, and the beneficiaries in remainder became entitled to their respective shares in accordance with the terms of the trust deed. It follows that the property covered by the trust must be so administered by the plaintiff.

2. It is contended however by Elizabeth Kelley, one of the defendants, that one of the bank books named in the trust deed, namely, Book No. 56,762, of the New Bedford Institution for Savings, was held by the donor in trust for her, and that she is therefore entitled to it. The facts bearing upon this matter are stated at length in the eleventh paragraph of the master’s report. Whether they show a special trust in favor of Mrs. Kelley is a question of fact and not of law. The facts fully warrant the conclusion reached by the master that the testatrix did not at any time intend to create a trust in favor of Mrs. Kelley in this deposit, and that there was no completed transfer or gift to her. This deposit must stand as a part of the trust.

3. A similar claim is made by the defendant Mary Ann Hammond to the bank book No. 69,645, in the New Bedford Five Cents Savings Bank. This deposit was not included in the trust deed, but was a part of the estate owned by the testator at the time of her death. The facts with reference to this claim are set out in the twelfth paragraph of the report of the master, and they fully justify his finding that it was not at any time the intention of the testatrix that Mrs. Hammond should own the deposit. No trust therefore is. shown in it, and it is a part of the assets of the estate of the deceased.

4. At the decease of the testatrix her estate consisted of this last deposit and of real estate of the value of $5,000; and the question on this branch of the case is what disposition shall be made of this property, real and personal. The testatrix appears to have made a will and three codicils. At the time each was made she was the wife of Snow the defendant, who was her third husband. She was childless, her only child, a son by a former marriage, having died unmarried, leaving, however, a natural daughter, Grace Kirwin, who lived with the testatrix until a short time before her death. The first will and codicil, executed simultaneously in June, 1892, provided in substance that all the property real and personal should be reduced to cash by the executor, that $2,000 should be paid to the husband, $1,000 to Mary Ann Hammond, and the balance should be placed in trust for Grace Kirwin for life, with remainder to her children surviving her, or in default of such children, to the said Mary A. Hammond, Thomas Meade and Bernard F. Kelley. To this will and codicil the husband duly consented. At this time the estate consisted of the real estate above named and of the personal property afterwards conveyed by the trust deed, and it is evident that had the testatrix retained this property until her death her husband, if then surviving, wquld in the absence of the consent to her will have received much more than $2,000. The second codicil simply changed the trustee and executor nominated in the will. The third was executed the day before the testatrix died, and by it the provisions of the will and first codicil, with the exception of the bequests of $2,000 to the husband and of $1,000 to Mary Ann Hammond, are radically changed. The trust created in the will as above stated is re-yoked, there is no bequest to Grace Kirwin, and the estate remaining after the said bequests to the husband and to Hammond is divided among various legatees, the most of whom are not named at all in the first will. In a word, the will as changed by the third codicil is, with the exceptions above named, an entirely different will from that to which the husband consented, and this radical difference extends to the portion which if the testatrix had died intestate would have gone to him.

What is the result as to the rights of the husband ? Shall his consent to the will and first codicil be held to be a consent to the will as changed by the third codicil?

At common law a married woman could not make a valid will of her real estate. Nor could she make a will of her personal estate (except perhaps as to that held by her to her own separate use) without her husband’s license. 2 Bl. Com. 498. Osgood v. Breed, 12 Mass. 525. In order thus to establish a will, however, a general consent that the wife may make a will was not sufficient. It was necessary that the husband should consent to the particular will made by the wife. 2 Bl. Com. 498. Rex v. Bettesworth, Strange, 891. Cutter v. Butler, 25 N. H. 343, 357.

While under our statutes the real and personal estate of a married woman are her separate property, yet until very recently her power to dispose of it by will always has been subject to the condition that no will should operate to deprive the husband without his consent of certain rights therein at her decease. The testatrix died June 29, 1901. At that time Pub. Sts. c. 147, § 6, with its amendments, had not been repealed. It is true that in St. 1899, c. 479, § 13, there was a provision for its repeal, but this last statute having itself been repealed before it went into effect, (see St. 1900, c. 174, and c. 450,) never became operative, and it was not until St. 1900, c. 450, which took effect January 1,1902, (see St. 1901, c. 461,) that Pub. Sts. c. 147, § 6 as amended ceased to be the law. This statute, as amended and in force at the time of the death of the testatrix, provided, so far as material to this case, that a married woman might make a will in the same manner and with the same effect as if she were sole, except that no such will should without the written consent of her husband operate to deprive him of her real estate not exceeding $5,000 in value, where no issue survived her, or in any event, of more than one half of her personal estate.. Pub. Sts. c. 147, § 6-. St. 1885, c. 255, § 1. St. 1887, c. 290, § 2. The consent of the husband is not necessary to the validity of the will so far as it does not interfere with his rights in the estate of the testatrix, should he survive her. This consent is not in the nature of a transfer or conveyance of property in which the husband has any present right or interest, but it is only a waiver of any statutory right he might otherwise have to his wife’s property after her decease. Silsby v. Bullock, 10 Allen, 94, 96. It is manifest that the reason which leads a husband to consent to a particular will may be found not only in the specific provisions therein made for him, but also in those which respect the other parts of the wife’s property, especially that part which but for the will would upon her decease come to him. He might be willing to stand aside in the interest of his own child, and unwilling to do it in the interest of a person deemed by him undeserving, or for an object which did not commend itself to him. In the light of the principle prevailing, as before stated, at common law, namely, that the general consent of the husband that the wife might make a will was not sufficient, but that the consent must be to the particular will made, and of the principles applicable generally to a waiver, and of the weighty and obvious objections to a contrary interpretation, we are of opinion that the consent required by the statute is like that theretofore required at common law, and that a consent to one will is not applicable at least to a subsequent will which changes substantially the disposition of the property as to which the consent is requisite. It follows that the husband in this case never consented to the will of his wife as finally allowed. He is entitled to her real estate to the .value of $5,000, and to one half of her personal estate as if she had died sole. But of course he cannot have also the specific legacy of $2,000.

Under this rule the husband in this case will apparently take substantially all the real estate, and there will be only a little, if any, real estate, and but a small amount of personal property, remaining.

It remains to be considered how this residue' shall be distributed. It is plain that the testatrix did not intend by the third codicil to revoke the legacies contained in the second item of the original will. The bequest therefore of $1,000 to Mary Ann Hammond must stand as originally drawn. It is also plain that the bequests contained in the fourth to the eighth clauses, both inclusive, of the third codicil were intended to relate only to the distribution of the trust fund and were to be paid only from it; This part of the will becomes inoperative. The language of the residuary clause in favor of Mary Ann Hammond, however, is broad enough to cover whatever may be left of the estate outside of the trust fund.

The result is that the plaintiff holds the property named in the trust deed, including the deposit represented in book No. 56,762 in the New Bedford Institution for Savings, as trustee under the deed and not as executor, and he is to distribute it in accordance with its terms. He holds the deposit represented by book No. 69,645 in the New Bedford Five Cents Savings Bank as executor, as a part of the assets of the estate of the testatrix free from any trust. The rights of the husband in the estate ape as hereinbefore stated; and the residue of the estate goes to Mary Ann Hammond.

Decree accordingly.