Rackemann v. Wood

Knowlton, C. J. Under the peculiar facts of this case, we are asked to construe the eighth clause of the will of John Hancock, late of West Roxbury, deceased, which is as follows: “I [503] give and bequeath one-fifth of my estate to a trustee upon, trust, to invest the same and appropriate so much of the income thereof as he, in his discretion, shall think needful for the support of my son Washington. It is my will that the trustee may pay over to my son his portion of my estate at such time and in such sums as he may deem expedient, desiring him to consult the interest and welfare of my son, and that my son, in case his portion of my estate is not paid to him as aforesaid, shall have power to dispose of the same by will in the family. I direct that at the decease of my son, if his portion of my estate should not have been paid over to him as aforesaid, or if he shall not have disposed of the same by will, the whole sum remaining in the hands of the trustee shall be divided among my other children, to wit: George, Charles Lowell, Elizabeth Lowell and Franklin, in the same way, subject to the same trusts and provisos, upon which they respectively receive their portions of my estate. It is my will that my son may appoint his own trustee.” The seventh clause is in precisely the same words, except that the word “Franklin” is found in the place of the word “ Washington ” and the word “ Washington ” is found in the place of the word “ Franklin.” By these two clauses, identically the same provision was made for each of the testator’s two sons, Franklin and Washington. By the fifth clause another fifth part of the estate was given to trustees, for his daughter Elizabeth Lowell Moriarty for life, and after her death to her children. By the second and third clauses, respectively, the testator gave another fifth part of his estate absolutely to each of his two sons, George Hancock and Charles Lowell Hancock. Franklin Hancock died, a part of his share of the estate not having been paid over to him by the trustees, and he not having disposed of it by will. In proceedings before the Supreme Court of Illinois, reported in the case of Harvard College v. Balch, 171 Ill. 275, it was held that his three brothers, George, Charles Lowell and Washington, and his sister Elizabeth Lowell, took vested remainders in his share in the hands of the trustee, and one-fourth part of his share accordingly passed to the trustee for Washington, to be held with the original one fifth part of the estate. Washington having since deceased, and a large amount [504] of income of his property remaining in the hands of the trustee, this bill was brought by the trustee for instructions in regard to the disposition of this income. By the language of the will, the share derived from the property in the hands of the trustee after Franklin’s death is “ subject to the same trusts and provisos ” upon which Washington received his portion of the estate, that is, the same trusts and provisos that are stated in the eighth clause of the will. In the disposition of the property no distinction can be made between the share that Washington’s trustee received originally, and that which he received from Franklin’s share after Franklin’s death. The question of difficulty arises from the death of both Franklin and Washington, each one of whom, if he survived the other, was to be entitled to a share of the other’s estate which remained undisposed of in the hands of the trustee. The share of each is given to the three brothers of this class and this sister in equal portions. When the will was made, and at the time of his death, the testator had other sons and another daughter. The language of the seventh and eighth clauses seems to make it plain that any property of either Franklin or Washington, left undisposed of in the hands of the trustee, should be divided among the children named in each of these clauses, and that it should not be held or inherited in such a way as to pass as intestate property, either from Franklin or Washington, to their heirs at law. If we are right in this, on the death of the survivor of the two, the property in the hands of the trustee necessarily would be divided among the other two brothers and the sister.' In a petition for partition of real estate in Illinois, brought in that State by the present plaintiff as trustee, involving precisely the same question as is involved in this case, that suit having been brought to determine the disposition of the principal and this to determine the disposition of the income, it was determined, by a unanimous decision of the Supreme Court of Illinois, that the real estate held by the plaintiff under the trust for Washington at the time of his death should be divided into three equal parts, one for the representatives of George, one for the representatives of Charles Lowell, and one for the representatives of Elizabeth Lowell. If that decision was correct, the income must be divided in the same way. While the decision [505] of the highest court of another State is not binding upon us, it always should be given great weight, and when it is a decision under the same will, between the same parties, in reference to the same trust, and affecting a part of the same property as we have before us, nothing less than strong reasons would justify the court in establishing a different rule of law from that established by another tribunal of co-ordinate authority. As we have already said, we are of opinion that the decision in question, which is found in Rackemann v. Tilton, 236 Ill. 49, is in accordance with the intent of the testator. It may rest either on the technical grounds stated in the elaborate opinion of the court, or perhaps it may be held that the remainder in the estate of W ashington, which vested in Franklin at the death of the testator, was subject to be divested, not only by a possible act of the trustee in paying it all over to Washington in his lifetime, or by a disposition of it by Washington by will, but also by the death of Franklin in the lifetime of Washington. So to hold would be in accordance with decisions in this Commonwealth. Blanchard v. Blanchard, 1 Allen, 223, 226, 229. Putnam v. Story, 132 Mass. 205, 210. Dodd v. Winship, 144 Mass. 461, 464. Webster v. Ellsworth, 147 Mass. 602, 604. Crapo v. Price, 190 Mass. 317, 319. In our opinion the testator intended that the death of Franklin in the lifetime of Washington, as well as the payment of the whole fund to Washington by the trustee, or the disposition of it by Washington by will, should divest Franklin of the remainder, which became vested in him, subject to these contingencies, on the death of the testator. If by his death in the lifetime of Washington he was divested of his remainder in Washington’s share, the will shows plainly the intention of the testator that it should go to the other two brothers and the sister, or their representatives. In this way we should reach the result arrived at by the court in Illinois. By any mode of reasoning that may be proper, we deem it our duty to give effect to the purpose of the testator indicated by the language quoted above. We do not deem it necessary to discuss the question whether the gift to Washington was of an equitable fee in the one fifth mentioned in the eighth clause. This question is covered by [506] the decision, in each of the two cases in Illinois, already referred to, and the language of the will makes the answer plain. There was no absolute gift of the income of the property to Washington. The direction of the testator to the trustee was only to appropriate so much of the income as he, in his discretion, should think needful for the support of Washington. That gave Washington no title to the income, except as the trustee, in the honest exercise of his discretion, should pay it over to him. Minot v. Tappan, 127 Mass. 333. Crawford v. Langmaid, 171 Mass. 309. Wilson v. Wilson, 145 Mass. 490. In this respect the unappropriated income stands no differently from the principal. The result is that the income in the hands of the trustee is to be divided into three equal parts, one for the legal representatives of George Hancock, one for the legal representatives of Charles Lowell Hancock, and one for the legal representatives of Elizabeth Lowell Moriarty, claiming under and in accordance with the provisions of the will of her father. Decree accordingly.