Southard v. Southard

96 N.E. 941, 210 Mass. 347, 1911 Mass. LEXIS 1071

• Court: Massachusetts Supreme Judicial Court
• Decided: December 8, 1911
• Status: Published

Opinion

Braley, J.

The trustees bring these petitions for instructions as to their respective duties under the wills of Harriott E. Edmands and of her father, John Rayner. It is contended by the defendant, Roxa S. Southard, a great-granddaughter of the testator, who with the defendant, Horton Edmands, a great-grandson, are his only surviving lineal heirs, that the trust created by John Rayner’s will offends the rule against perpetuities, and also imposes an illegal restraint upon alienation, and, there now being no interests which have not vested or been determined, that it should be terminated and the property conveyed in fee.

The bulk of the testator’s estate consisted at his death of three parcels of realty, each subject to a mortgage. In the third clause of his will he devised the equities to trustees to whom the petitioners have succeeded, and directed that the income and profits be collected, and after payment of all necessary outlays and expenses, with a reasonable compensation for themselves, one half of the net income thus ascertained should be paid in certain proportions to his children and grandchildren, who are specifically named, and the remaining half was to be used in payment of the mortgages until they were extinguished. By the twenty-second or residuary clause, the residue of the estate was devised and given to “ the same persons and in the same proportions as I have given the three estates aforesaid, and subject to all the restrictions and reservations before mentioned, except that it is not to he in trust but an absolute bequest and devise.” Having created the trust he directs in the seventh clause, “ that no one of said three estates shall at present be divided or partitioned amongst the persons entitled thereto as hereinafter provided,” and then in the tenth, eleventh, twelfth, thirteenth and fourteenth clauses divides the principal subject to'- the trust into four parts, and names the grandchildren who are to take a quarter, and his son and two daughters who each take one of the remaining three quarters. We find no limitation over, and the rule of construction adopted in Gibbens v. Gibbens, 140 Mass. 102, 104, and affirmed in Stanwood v. Stanwood, 179 Mass. 223, and in Minot v. Purrington, 190 Mass. 336, 338, “ that a vested remainder will be held to have been intended, in the case of a devise to the testator’s children, unless there is something sufficient to show to the contrary,” should be applied. The construction is not affected by the closing paragraph of the eleventh clause, that if when the trust ceased “. . . my said grandchildren shall all be deceased, I give, devise and bequeath said one-fourth part in fee simple to the other devisees under this will, the survivors and survivor of them.” If the grandchildren all died the devise over to his children which in title was a vested interest depending upon a contingency would become a vested remainder to take effect in possession when the mortgages were paid. Blanchard v. Blanchard, 1 Allen, 223, 227. Belcher v. Burnett, 126 Mass. 230, 231. Shaw v. Eckley, 169 Mass. 119, 121, 122. Heard v. Read, 169 Mass. 216, 220. Gilkie v. Marsh, 186 Mass. 336, 341. Clarke v. Fay, 205 Mass. 228.

But, while the nature of their title has been discussed without reference to the provisions for the application of income in payment of the outstanding mortgages, the objects of the trust are so connected and interdependent that its character and validity are to be determined from all the language employed by the testator. We accordingly turn to the seventh, eighth, and ninth clauses of the will.

The seventh clause directs that the three mortgaged estates shall not be partitioned amongst the persons entitled thereto as “ hereinafter provided, but shall remain undivided until the mortgage now existing upon- each estate respectively,” or mortgages given in substitution “ shall be fully paid and discharged,” and “now for the purpose of paying and discharging said incumbrances, it is my will, and I hereby direct my trustees to set apart the remaining half part of the net annual income of said three estates as a sinking fund, and to apply the same as soon as, and as often as the same can legally and properly be done, towards the payment and discharge of said mortgages.” If this clause, with the fifteenth clause that “ my children and grandchildren will not, I am sure, misunderstand my motive in making the foregoing provisions relative to said three estates, my sole object being to render the same of the greatest value to them, which end, I believe, will be best attained by a compliance with those provisions,” are separated from the context, there would be ground for the argument urged by Horton Edmands, that the testator’s primary purpose was to provide for the payment of specific debts outstanding at his death so that his children and grandchildren might come into possession of unincumbered estates.

But the further provisions in the eighth and ninth clauses cannot be disregarded. By the eighth clause while the replacement of buildings which might be destroyed by fire or other casualty, and their preservation by suitable repairs from depreciation and decay may be treated as matters of necessary administration, the general authority empowering the trustees to erect in their discretion new buildings, and the placing of new mortgages to defray the expense, and by the ninth clause, that they may substitute new mortgages for a like amount to those in force at his death if the mortgagees demand payment, far exceed a direction to trustees to apply income in payment of designated mortgagees until their debts are extinguished. The trustees could reconstruct, improve and enlarge the buildings, and erect new buildings and mortgage the trust estate to pay for the outlay. The term, therefore, would end, and a conveyance under the tenth clause of the will could be made only when the mortgage debts thus created had been satisfied. It doubtless was the testator’s intention, when the entire will is considered, to provide only for his ehildren and grandchildren. But if the devise of vested estates, and the language of the fifteenth clause, indicate that the testator intended that the devisees ultimately should come into possession •with the power of absolute disposition, yet the prescribed period of redemption as expressed does not exclude the contingency that none of them might survive its termination. Whatever might have been accomplished by the consent of all parties, yet under the terms of the trust they could not compel the trustees to unite with them in a conveyance which would pass to the purchaser the legal and equitable title, or procure a discharge of the mortgages by payment of the principal. The purpose is not to enable the trustees to hold only the legal title, and to manage and preserve the estate, and pay the net income at stated periods to the beneficiaries until they reached a certain age, and then to convey to them in fee, or to whomsoever they might in writing appoint, or upon the decease of all of them, to distribute the prdperty among their heirs at law to take by right of representation. Sparhawk v. Cloon, 125 Mass. 263. Sears v. Choate, 146 Mass. 395. Claflin v. Claflin, 149 Mass. 19. Dunn v. Dobson, 198 Mass. 142. See also Lathrop v. Merrill, 207 Mass. 6, 9. It was made their duty to preserve the property from foreclosure, and not to convey until the trust had been executed as the testator directed. The inhibition from making any conveyance of an estate in fee simple until the mortgages had been previously satisfied from income, rendered the property inalienable for an unreasonable period and the trust should be terminated. Sears v. Putnam, 102 Mass. 5. Bartlett, petitioner, 163 Mass. 509, 512. Winsor v. Mills, 157 Mass. 362. Howe v. Morse, 174 Mass. 491, 505, 506. Brown v. Burdett, 21 Ch. D. 667.

By the will of Harriott E. Edmands she devised her quarter share to trustees to hold until the trust in her father’s will was determined. The equitable life estate given to her husband under the third clause, having fallen in by his death, and the trust having been ended, the fifth, sixth and seventh clauses disposing of the fee become operative. We are asked to construe the fifth clause which disposes of one third to her nephews and nieces, who are specifically named, and all of whom survived their aunt and uncle. But, as they took a vested remainder, whether the devise over to their unborn children is void for remoteness is of no consequence. Cushman v. Arnold, 185 Mass. 165, 168, 169. Peabody v. Tyskiewicz, 191 Mass. 317, 321. Ball v. Holland, 189 Mass. 369.

The children and grandchildren are deceased and it appears that by descent and devise Roxa S. Southard, Horton Edmands and Francis 0. Welch as he is trustee under the will of Thomas 'F. Edmands have succeeded to the title of the original devisees, and there are no contingent interests. The trustees under the will of John Rayner are to convey the property to them discharged of the trust, to hold as tenants in common according to their proportionate shares, subject, however, to the mortgages on two of the parcels, the validity of which is not questioned. Bowditch v. Andrew, 8 Allen, 339. How v. Waldron, 98 Mass. 281. The undistributed net income, if any, accruing since the death of J. Rayner Edmands, or which has accumulated, pending the controversy, is to be divided among them in the same proportions.

The defendant, Roxa S. Southard further contends that “ the termination of the trust, according to its terms, has been thwarted by the failure of the trustees to realize upon security belonging to the sinking fund, to wit, the assigned interest of John J. Rayner in the estate ” and “ that after his assignment, a proper administration of the trus,t would have annually turned into the sinking fund John J. Rayner’s income therefrom.”

* Having been one of the original trustees, he appropriated while in office an appreciable part of the income, and pledged his share to replace the deficiency. But an examination of the instrument executed by him in connection with the conditions leading to the pledge, and the subsequent release of the accrued interest leaves no doubt as to the intention of the parties. The purpose was to protect the other beneficiaries from the loss which would ensue upon alienation by him of his share of the estate, and that either by will or upon intestacy his interest, which was more than sufficient to repay the indebtedness, should pass to them. John J. Rayner having died intestate, without issue, and his widow, who has since deceased, in consideration of an annuity for life having released her rights, the result desired was effected, and his share, having vested in the surviving beneficiaries as his heirs at law, was not converted into income but continued to constitute a part of the principal. Pope v. Farnsworth, 146 Mass. 339. Preble v. Greenleaf, 180 Mass. 79. It moreover having been thus treated by the trustees in their probate accounts with the assent in writing of the beneficiaries from whom she derives title, and of the mortgagees, for at least twenty-five years, the decrees passing and confirming their accounts, as well as the probate accounts of J. Rayner Edmands, who acted as one of the trustees presented by his executor, to which the parties did not assent but from which no appeal appears to have been taken, are conclusive and cannot be set aside or modified in these proceedings. Bennett v. Pierce, 188 Mass. 186. Connors v. Cunard Steamship Co. 204 Mass. 310.

The details and terms of the decree in each case are to be settled before a single justice. Sears v. Hardy, 120 Mass. 524, 542.

Decree accordingly.

The argument of the defendant Roxa S. Southard on this point, as stated in her brief, is as follows: “ Upon this point, this defendant calls the attention of the court to the fact . . . that the present value of the one third interest of John J. Rayner in the trust estates is one third of the present net value of the estates, namely $426, 266.07, or $142,088.89. The present outstanding mortgages are $105333.33. Therefore the admitted present value of the security held in the trust fund by the trustees against the debt of a former trustee is $37,000 in excess of the mortgages now outstanding.

“ The debt of John J. Rayner was on December 31,1875, $44591.47.

“ Assuming that the then beneficiaries had a right (which this defendant denies) to waive interest on this indebtedness up to December 2, 1881, it can hardly be questioned that from that time to the present such indebtedness should bear interest at the legal rate, and such interest from December 2, 1881 to December 2,1910 amounts to $77,589.16, making a total indebtedness from John J. Rayner belonging to the sinking fund of the John Rayner trustees of $122,180.63.

“It is unquestionable that it was the duty of the trustees, immediately upon the assignment by John J. Rayner of his interest to secure his indebtedness, to realize upon the security and make good the depleted sinking fund.”