Nelligan v. Long

70 N.E.2d 175, 320 Mass. 439, 170 A.L.R. 126, 1946 Mass. LEXIS 764
CourtMassachusetts Supreme Judicial Court
DecidedNovember 29, 1946
StatusPublished
Cited by12 cases

This text of 70 N.E.2d 175 (Nelligan v. Long) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelligan v. Long, 70 N.E.2d 175, 320 Mass. 439, 170 A.L.R. 126, 1946 Mass. LEXIS 764 (Mass. 1946).

Opinion

Dolan, J.

This is an appeal from decrees allowing two accounts of the trust created under the will of Thomas F. Welch. The appeal is that of Frank J. Long, Junior, a minor great grandson of the testator. The first account, covering the period beginning January 5, 1922, and ending January 20, 1938, is rendered by the trustees named in the testator’s will. The other account (also denominated a first account) is that rendered by two of the trustees named in the will and a trustee appointed to fill a vacancy caused by the subsequent death of one of those nominated by the testator. We shall refer to that account for clarity as the second account of the trust. It covers the period from January 20, 1938, to December 31, 1941. The case was heard by the judge upon the accounts and a statement of agreed facts, in effect a case stated.

The material facts are these: The testator died on November 25, 1920. He was survived by his wife, Margaret, three daughters, Katherine A. Long, Mary W. Nelligan and Ellen L. Welch, now Ellen W. Godvin, and two grandchildren, the son Frank and the daughter Elinor óf the testator’s daughter Katherine. His will was allowed on December 16, 1920. His daughter Katherine A. Long died, on April 17, 1937. She was survived by the daughter Elinor, now Elinor L. Graham (one of the present trustees), and a grandson Frank J. Long, Junior, the son of her son Frank who predeceased her. Her grandson Frank is the appellant. By his will the testator devised and bequeathed all his residuary estate to his three daughters in trust, to pay one third of the income to his wife, Margaret, specific sums in monthly payments to two of his sisters, the “entire gross income” from the “Stone House” to Sabina E. McLaughlin during her life, all expenses of maintaining the same to be paid out of the other income of the trust estate, and the remaining income one third to each of his daughters Katherine, Mary and Ellen during their respective lives. The testator further provided in article 2 as follows: “(F) Upon the death of [441]*441said Ellen L. Welch, without issue, or Mary W. Nelligan, to pay the remaining net income in equal shares, among the survivor or survivors of my said children, Katherine A. Long, Ellen L. Welch and Mary W. Nelligan. (G) If the said Ellen L. Welch dies, leaving issue, to pay one third (!) of the remaining net income for the education, maintenance and support of said issue, until the termination of this trust. (H) Upon the death of said Katherine A. Long to pay one third (!) of the remaining net income for the education, maintenance and support of her children, then living, until the termination of this trust. (I) This trust shall continue during the lifetime of my said children, Katherine A. Long, Mary W. Nelligan and Ellen L. Welch, and during the lifetime of my wife, Margaret E. Welch of my sisters, Ellen Welch and Deha Welch, and of said Sabina E. McLaughlin; and at the death of all said above mentioned persons, the trust shall thereupon terminate and my trustee shall thereupon transfer and convey all of the trust property, including principal and income to the following persons and in the following shares: One third to Thomas F. Welch, Jr., if he is living at the time of the termination of this trust. One third to any issue of Ellen L. Welch living at the time of the termination of the trust, said issue to take in equal shares. One third to the issue of Katherine A. Long living at the time of the termination of the trust, said issue to take in equal shares. If the said Ellen L. Welch dies without issue said one third of the trust property, above given to her issue, shall be given to the issue of Katherine A. Long, so that said issue of Katherine A. Long shall receive two thirds (f) instead of one third, said issue to take the same in equal shares.” The testator’s daughter Katherine, as before noted, died on April 17,1937. Since the death of Katherine, the share of income that had been payable to her has been paid to her daughter Elinor, the only child of Katherine who survived her, except that in the second account one half of the income from that share is shown as withheld pending the determination of the right of the appellant to share therein. None of the income of the trust estate has ever been paid to the appellant.

[442]*442The contentions of the appellant are (1) that he is entitled to one half of the income from the trust estate that was. formerly payable to his grandmother, the testator’s daughter Katherine, and (2) that the trustees had a duty to “set aside out of the moneys received both for the use of the land and as dividends on the stock a reserve against depletion of the wasting assets included in the trust estate.”

1. We now consider the first contention, postponing a recital of the provisions of the will of the testator and the other material facts bearing on the appellant’s second contention until we dispose of his first contention.

We are of opinion that the appellant is not entitled to share in the income of the trust estate formerly payable to his grandmother, the testator’s daughter Katherine. By article 2 (H) of the testator’s will he provided that, upon the death of Katherine, the share of the net income therein bequeathed was to be paid by the trustees for the “education, maintenance and support of her children, then living, until the termination of this trust.” Considered together with the terms of the trust concerning the payment of income to the other daughters of the testator and of the will read as a whole in the light of the circumstances known to the testator when he executed the will (Ware v. Minot, 202 Mass. 512, 516), we are of opinion that the testator did not intend that a grandchild of Katherine should receive any of the income that was payable to her in her lifetime, but rather intended that only children of Katherine living at her death should enjoy that share of the income until the termination of the trust. At the time of the execution of the will (November 15,1920) Katherine had two children, Frank (the father of the appellant) and Elinor. It is a fair inference from the agreed facts that that was known to the testator when he executed the will. And since the appellant is a minor and the will was executed in 1920, it is evident that he was not then in being. It is also a proper inference that when the will was executed the testator’s daughter Ellen was unmarried.1 In the consideration of the foregoing facts [443]*443concerning the circumstances attendant upon the execution of the will, it is to be noted that the testator died ten days after its execution. It thus appears that, at the time of the execution of the will of the testator, he was acting with knowledge that his daughter Katherine did have children and that she then had no grandchildren, and with an understanding that his daughter Ellen might marry and might die leaving issue, or that she might die leaving no issue. The appellant argues that the testator could not have intended to provide for the education, maintenance and support of the issue of Ellen should she die leaving issue, and at the same time to limit provisions for the same purpose on the death of Katherine to her children then living.

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Cite This Page — Counsel Stack

Bluebook (online)
70 N.E.2d 175, 320 Mass. 439, 170 A.L.R. 126, 1946 Mass. LEXIS 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelligan-v-long-mass-1946.