Huntress v. Allen

Rugg, J. The plaintiffs state in their first bill that they are ready and willing to terminate the trust created by the tenth clause, so far as it relates to the interest of James F. Hanley, and offer to pay the same into court or to such persons as the court may order. All other legatees interested in the trust clause and Thomas Allen and the Karsch Brewing Company are parties to this proceeding. The second suit is by the same plaintiffs in the same capacity, and joins the same parties as defendants. This bill states that Frederick J. Hanley, one of the beneficiaries under said will, died in May, 1904, leaving one child, Gertrude E. Hanley, who now claims that part 'of the residuary estate devised to Frederick, and avers that the trustees are ready to terminate the trust so far as it relates to Frederick J. Hanley and Gertrude, his daughter, and prays for instructions as to the persons to whom the legacy shall be paid. Both suits were referred to a master, who found that on October 7, 1900, James F. Hanley and Frederick J. Hanley each signed their several notes for $2,000 to the order of Thomas Allen, and each secured the payment thereof by the’ execution and delivery of a mortgage or assignment of his interest in his father’s estate, and that these instruments were delivered to Allen on the following day, and that on December 19, 1902, Allen duly assigned and transferred to the Karsch Brewing Company all the right, title and interest in the estate of Patrick T. Hanley acquired by him under said two mortgages, and delivered to it the notes. This assignment was to secure the payment of a loan of $2,700 made to him by the company. I. In the second case the master ruled, upon the facts found, that Frederick J. Hanley, having deceased before the termination of the trust, leaving, as his only issue, Gertrude E. Hanley, she was entitled, upon the termination of the trust, to his share in the estate, and that Allen and the Karsch Brewing Company took nothing by the Frederick J. Hanley mortgage and note. [232] To this ruling objections were duly made and exceptions seasonably taken to the master’s report and filed by Allen and the Karsch Brewing Company, and this case comes before us on a reservation upon the pleadings, the master’s report and the exceptions thereto of the Karsch Brewing Company. The question raised is whether under clause tenth of the will of Patrick T. Hanley the interest of his son, Frederick J. Hanley, upon the latter’s death, vested in Gertrude E. Hanley to the exclusion of any rights acquired under the mortgage and assignment to Allen and the Karsch Brewing Company. Paragraph (y) expresses a plain desire on the part of the testator that, until the termination of the trust respecting any of his children in one of the ways pointed out in the succeeding paragraphs of the will, the share of such child in the income and body of the fund shall be free from any interference by creditors. That such a testamentary intent will be given full effect has been decided by Broadway National Bank v. Adams, 133 Mass. 170, and the many cases following it, the last being Alexander v. MePeck, 189 .Mass. 34. The will in other paragraphs created for Frederick J. Hanley a vested interest in a contingent remainder. Cummings v. Stearns, 161 Mass. 506. Minot v. Purrington, 190 Mass. 336. His interest, whether assigned or not, was liable to be divested by the happening of the contingency. Wainwright v. Sawyer, 150 Mass. 168. The death of Frederick J. Hanley at the age of twenty-nine, before the termination of the trust, leaving the respondent Gertrude as his only issue, is the contingency, which the testator had in mind in phrasing paragraph (/). An ingenious argument has been plausibly urged that clause (y) creates a vested interest, and that the word “ or ” in clause (y) should be construed as “ and,” and that therefore the contingencies contemplated by clauses (y) and (A) did not happen to Frederick, and hence his interest in the fund belongs to Allen and the Karsch Brewing Company to the extent of their claims. But this argument is not sound. The testator manifested a clear intention that nothing should vest finally, free from the possibility of divestment, in any of his children, until the happening of the contingencies described in paragraph (A) or (i). 2. The master ruled in the first case that if James F. Hanley [233] should be living afc the termination of the trust, the Karsch Brewing Company, if then the owner of the James F. Hanley note and mortgage, would be entitled to the sum, of $2,000 out of the share of the trust estate belonging to James F. Hanley, with interest. Objections to this ruling appear to have been filed with the master by James F. Hanley, but no exceptions were taken to the report. A final decree was entered, in accordance with this finding of the master, but it contains no paragraph as to the disposition of the balance of the fund due James F. Hanley, after satisfying the claim of the Karsch Brewing Company. From this decree James F. Hanley appealed. He appears to have overlooked the provisions of Chancery Rules 31 and 32 of this court, although he complied with rule 31 to the extent of bringing in written objections to the master, which were appended to the report. In order to enable him to present to this court his rights saved by objections to the report, he must comply with the further provisions of these rules, and file his exceptions founded upon the objections within fifteen days from the filing of the report, and these exceptions must briefly and clearly specify the matter, to which he excepted. There is, therefore, nothing before us on his. objections. Boosa v. Davis, 175 Mass. 117. Sillier v. Farrell, 185 Mass. 434. It is still open to the appellant, however, to raise the question whether such a decree properly could be entered upon the pleadings and report, and his substantial rights appear thus to be preserved. Dwyer v. Bratkoysky, 170 Mass. 502. It is contended in behalf of James F. Hanley that, inasmuch as paragraph (g) of clause tenth of the will creates a spendthrift trust, under Broadway National Bank v. Adams, 133 Mass. 170, there can be no diversion of the amount that may be due him upon the termination of the trust from his hands to those of his creditors. Reading this clause as a whole, and discovering the intent of the testator from all its subdivisions, paragraph Qg) appears to apply to the alphabetical paragraphs which precede it. Paragraphs (5), (e), (d) and (e) authorize the trustees in some wholly discretionary respects to make advancements out of the income and body of the fund for the benefit of the several beneficiaries, while (/) authorizes the accumulation of income. These paragraphs, including (</), contemplate the continuance of the trust. The succeeding [234] paragraphs, (A), (i), (/) and (/c), look to the termination of the trust under various conditions. If it had been the desire of the testator to protect the beneficiaries from their own improvidence, as expressed by a mortgage or assignment, or from the interference of creditors in any other way at the time of the final distribution, he naturally would have placed a paragraph expressing that intent at the end of his directions as to the final distribution upon the termination of the trust, rather than at the end of those paragraphs, which relate solely to its continued administration. He also would have used language unequivocally expressive of such intention. This view gathers force from the doubt, which exists, as to the power of a testator to accomplish a sequestration from creditors at the time of a final distribution of the principal of a trust. Munroe v. Dewey, 176 Mass. 184. The will bears evidence throughout of having been drafted carefully, and therefore weight can be attached to the arrangement of paragraphs, which could not be attributed to an unskilfully drawn testament. The testator well may have thought that the discretion of the trustees, as to the termination of the trust respecting any one of his children, would not be exercised, unless that one either had ceased to be improvident, and therefore was able to manage property, or had so acted with reference to his interest in the fund as to make it just that creditors or assignees should be given an opportunity to reach it. There is strong ground for the opinion that paragraph (y), taken by itself, does not forbid a voluntary assignment by a beneficiary. See Munroe v. Dewey, supra. In any event, under the circumstances now existing as to James and his interest in the fund, his assignment was of a vested interest (Minot v. Purrington, supra) and, the contingency to which it was subject not having happened, is now operative. Wainwright v. Sawyer, supra. The point is made upon his brief that the master’s report contains no finding that there has been any breach in the performance of the conditions named in the assignment, in the payment of interest upon the notes, and that therefore the portion of the decree, which directs the immediate payment of his note from the fund, cannot be justified. The note was dated October 17, 1900, payable in eight years, although the assignment or mortgage of his interest contains the provision that he [235] may pay the principal sum due at an earlier date. Neither the Karsch Brewing Company as the holder of the note nor Allen makes any objection and neither has appealed from the decree, so the point is not open to either of them. It is therefore not necessary to consider in this connection the principle of Payson v. Lamson, 134 Mass. 593. If James F. Hanley insists upon the application of strictly technical rules, apparently, upon the master’s report, he has a right to insist that the fund covered by the mortgage assignment shall not be applied to the actual payment of the note until its maturity. If this is done, however, a sum out of the fund must be set aside sufficiently large, with its assured accumulation, to meet the note at maturity. If, within fifteen days from the entry of the rescript in this case, James F. Hanley elects, the decree must be modified in respect of the time of payment of the note, and the details of a paragraph to be inserted setting apart a sum of money sufficient to pay his note at maturity be framed before a single justice. Unless such election is filed, the decree in this respect is to be affirmed. The decree in this case, however, fails to instruct the plaintiffs as to what is to be done with the balance of the fund after satisfying the claim of the Karsch Brewing Company. It must also be modified to the extent of directing that such balance be paid to James F. Hanley. With these modifications it is affirmed. In the second case a decree should be entered directing the payment of the entire fund to Gertrude E. Hanley. iSo ordered.