Public-domain · open source
OpenJurist

214 Mass. 114

Bailey v. Smith

Massachusetts Supreme Judicial Court

Decided February 27, 1913

Massachusetts Supreme Judicial Court · decided 1913-02-27

<p>Equity Jurisdiction, Bill for instructions. Trust, Construction, Reimbursement of trustee for overpayments. Probate Court, Allowing counsel fees out of fund. Equity Pleading and Practice, Counsel fees. Words, “ Representatives.”</p> <p>In a suit in equity by a trustee for instructions as to his duty under the terms of a Will and codicil in distributing the income of the trust and the final distribution of the principal, if it appears that the time for the distribution of the principal has not arrived, the plaintiff is entitled to receive instructions only as to the present distribution of the income.</p> <p>A trust created by will provided that each of the two brothers of the testatrix should receive one half of the net income from the trust property during his life and that, upon the death of one brother, the other surviving, the heirs of the deceased brother should succeed to his share of the income until the death of the surviving brother, whereupon the net income should be distributed in equal shares among the six children of the two brothers, who were designated by their names, “or their representatives”• until a certain event, when the principal of the trust should be distributed. The six nephews and nieces of the testatrix named all were living at the time of her death. After the deaths of both of the brothers of the testatrix and of certain of the six nephews and nieces, the trustee brought a suit for instructions as to the distribution of the income. Held,, that the six nephews and nieces of the testatrix named in the will took upon the death of the testatrix vested interests in the income of the trust, subject to the previous life interests, and that in using the words “or their representatives,” in designating the persons to whom the share of a nephew or niece in the income should go upon his or her death before the termination of the trust, the testatrix meant those who would take as the next of kin of such deceased nephew or niece under the statute of distributions, and not the executor or administrator.</p> <p>On a bill for instructions as to the distribution of the income of a trust, if it appears that by a mistake certain beneficiaries have received from the trustee each one quarter of certain net income instead of a one sixth share to which each was entitled, the trustee may be authorized to retain so much of the future income coming to such beneficiaries as will reimburse him for his overpayments.</p> <p>The sufficiency of the amounts of counsel fees, in a suit by a trustee for instructions, ordered by a judge of the Probate Court to be taxed as costs to be paid from the principal of a trust fund, is a matter of discretion, and the decision of the judge will not be disturbed where his discretion does not appear to have been exercised arbitrarily or unjustly.</p>

Relies on Gray v. Whittemore · Brandeis v. Atkins · Cushman v. Arnold

Good law ✅— No negative treatment on recordhow we know

Decided 1913-02-27

How this case has been cited

Cited by 14 later decisions — most recently May 2000

14 state decisions

401913192019301940195019601970198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Brailey, J.

¶1By the fifteenth or residuary clause of her will, Franklin Smith and William J. Smith, the brothers of the testatrix, each took an equitable life estate in one half of the net income of the trust estate, and upon the death of one, the other surviving, the heirs of the deceased brother were to succeed to his share until the death of the surviving brother, whereupon the net income was to be equally divided between their six children, who are specifically named, or their representatives, until the death of the last surviving child. By the first clause of the first codicil, the provisions of clause fifteen were modified in so far as they related to the division of income. It was provided, that if the deceased brother left a widow she was to receive annually from the net income a certain sum, and the remainder only was to be distributed among his heirs. A radical change as to the disposition of the principal upon the death of the widow of either brother is found in the second clause of this codicil. But, although both brothers are dead, each left a widow who is still surviving, and, the time for a division of any part of the principal not having arrived, the trustees are entitled to be instructed only as to the present disposition of income. Peabody v. Tyszkiewicz, 191 Mass. 317.

¶2The period during which the heirs of a deceased brother were to enjoy his one half of the income, even if prolonged by the provisions for his widow where one died leaving the other brother living, has ceased to be operative, because, both brothers having deceased, the distribution thereafter, during the joint lives of the widows as provided in the codicil, must be in six equal parts as directed in the fifteenth clause.

¶3The nieces and nephews were all living at the death of the testatrix, and each took a vested interest in the income subject to the *120outstanding life estates and the annuities charged upon income. Cushman v. Arnold, 185 Mass. 165,168,169. Peabody v. Tyszkiewicz, 191 Mass. 317, 321. Ball v. Holland, 189 Mass. 369, 373. It is sufficiently manifest from the context of the will, that by the use of the words, “or their representatives,” when spealdng of the death of a nephew or niece before the trust as to income should terminate under the fifteenth clause, the testatrix meant those who would take as their heirs under our statutes of descent and distribution, and not their executors or administrators. Bates, petitioner, 159 Mass. 252. Olney v. Lovering, 167 Mass. 446. Upon the death of Helen I. Meade, a daughter of William, the trustees had in their hands accumulated income due her which should be paid to the administrator with the will annexed of her estate, but, as this share passed to the heirs at law, the income subsequently accruing is payable to her husband, Charles J. Meade, and to her mother, Sarah P. Smith, in the proportions designated in the R. L. cc. 133, 140. Olney v. Lovering, 167 Mass. 446. Gray v. Whittemore, 192 Mass. 367. Brandeis v. Atkins, 204 Mass. 471.

¶4It appears, however, that she and her brother William Pleis Smith received one quarter each instead of one sixth, and the trustees should be authorized to retain so much of the future income coming to those shares as will reimburse them for the over-payments. Hammond v. Hammond, 169 Mass. 82.

¶5What we have said as to the rights of the heirs of Helen applies as well to the distributees of the estate of Howard Smith, a son of Franklin, who died in another jurisdiction without leaving issue, and whose widow, Alice C. Smith, has appeared and filed an answer admitting the allegations of the bill, although she is not represented by counsel.

¶6The appellant Sarah P. Smith is not entitled as.the executrix of the will of William J. Smith to share in the income. His interest therein terminated with his death, and as his widow, she is entitled from income only to the annuity during her life, as well as her proportionate part of the one sixth inherited from her daughter.

¶7The decree of the Probate Court having been in accordance with the views expressed, it should be affirmed. Whether the allowances made to counsel for the appellants to be taxed on the fund should *121have been for a larger amount, rested in the sound discretion of that court, which does not appear to have been arbitrarily or unjustly exercised.

¶8 Decree accordingly.

/214/mass/114 · .json · Public domain