Codman v. Krell

Field, O. J. The last clause of the first article of the declaration of trust means, we think, that, if either or both of the children die before their mother, their respective shares shall be conveyed to his or her or their heirs at law in the same manner as if he or she or they had died immediately after the death of the mother. Both children died before the mother; and their heirs at law are to be determined as of a time immediately after her death. The mother died on August 30, 1888; the donor, her husband, died on September 26, 1873; neither the father nor the mother is an heir within the meaning of this clause, because neither was alive at the time the right of property vested in the heirs of the children. Denny v. Kettell, 135 Mass. 138. Knowlton v. Sanderson, 141 Mass. 323. Fargo v. Miller, 150 Mass. 225. The property was wholly personal property when given, and it has always remained personal property. The trustee under the declaration of trust had full power to change the investments subject to the limitation that the consent of the donor should first be obtained to any sales of the property made during his life. There is no declaration that any of the property should ever be invested in real estate, and although investments in real estate might possibly have been within the powers of the trustee, yet it does not appear that the donor contemplated that such investments would be likely to be made. The language of the declaration of trust in regard to the trust fund seems to indicate that the donor expected that it would be kept invested in personal property. If the children survived the mother, the property was to be kept in trust and the net income paid in equal shares to them until the son attained the age of twenty-five years, or, if he should sooner die, until he would have reached that age if he had lived, and then one half of “ the whole principal sum ” in the hands of the trustee was to be conveyed, transferred, and delivered to the son, or, in case of his decease, to his heirs at law, and the other half to the daughter, or, in case of her decease, to her heirs at law. If they both died before the mother, their shares were to be conveyed, transferred, and delivered to their respective heirs at law. The heirs at law, therefore, take by a sort of substitution for the person whose heirs they are. The meaning of this last clause is, we [218] think, that those persons should take who would have taken personal property from the children if the children had died intestate immediately after the death of their mother. It seems impossible to distinguish this case, in any satisfactory manner, from White v. Stanfield, 146 Mass. 424. See Sweet v. Dutton, 109 Mass. 589; Merrill v. Preston, 135 Mass. 451; Fabens v. Fabens, 141 Mass. 395. The donor in his declaration of trust describes himself as of Newburyport, in Massachusetts; and his domicil was at all times in Massachusetts. The beneficiaries under the clause of the trust we are considering were his wife and children, probably all, at the time when the declaration of trust was executed, domiciled in Massachusetts, as members of his family. The declaration of trust provides that, if the trustee shall decease, “ a new trustee or trustees may be appointed in his stead, upon application of the parties or party interested to the judge of probate, or to the justices of the Supreme Judicial Court, or any of them, for the county of Suffolk,” etc. The trustee is described as of Boston, Massachusetts, and the declaration of trust was apparently executed in Boston. We think that, so far as the donor had in mind any law under which the trust was to be administered, he had in mind tile law of Massachusetts, and that it must be determined by that law who are the persons who were intended by the description of heirs at law of the children. So far as concerns this case, the statutes of Massachusetts appear to be of the same effect now as when the trust was created. Merrill v. Preston, 135 Mass. 451. Lincoln v. Perry, 149 Mass. 368. The result is, that Isaac W. Wheelwright, Jane Caldwell, Catherine M. Atkinson, and Harriet H. Barton are entitled each to one fourth of the share that would have belonged to William Wheelwright, Jr., had he lived, namely, to one eighth part each of the trust fund which is the proceeds of the fifty shares of stock described in the bill; and that Paul Krell, the husband of Maria Augusta Wheelwright, who died leaving no issue, is entitled to the remaining half of this fund. So ordered.