Whitman v. Whitney

Crosby, J. The will of Susannah Whitney was duly proved and allowed in the Probate Court for the County of Middlesex on February 25, 1868. Under the eighth and eleventh clauses thereof certain trusts were created, and as the last surviving life tenant has died the trust estates are now determined and the time has come for the final distribution of the estates held thereunder. The plaintiff, who is the trustee under the will, brings this bill in equity for instructions to determine to whom the estate in his hands and possession is to be distributed and in what proportions. I. The will in clause eight contains the following provision: “And if both my said daughters shall die leaving no child which shall attain the age of twenty-one years, then the whole of said deceased sisters shares I give devise and bequeath to my said sons Augustus Anson and Benjamin White, to have and to hold the same to them their heirs and assigns forever.” Under this clause Augustus Anson Whitney and Benjamin White Whitney took at the death of their mother, the testatrix, remainders in a trust fund which were vested and the share of each was transmissible and descendible as property under the statutes regulating the descent and distribution of intestate estates. We do not understand that any contention is made to the contrary. Whitman v. Whitney, 225 Mass. 213. Whitman v. Huefner, 221 Mass. 265. Springfield Safe Deposit & Trust Co. v. Dwelly, 219 Mass. 65. Bosworth v. Stockbridge, 189 Mass. 266. 2. At the hearing before the single justice the appellants, William L. Whitney, Lucy A. Whitney and Julia A. Wright, made certain offers of proof which were in substance-that the life tenants, Abigail W. Howe and Susan E. W. Brackett, were of the opinion [23] and believed that they had no title or interest in the trust property which they had power to dispose of by will, and that they were so advised by their attorney; that they never intended by their wills, respectively, to dispose of any part of the trust property. These appellants contend that under these circumstances, the interests of Mrs. Howe and Mrs. Brackett in the trust fund did not pass by their wills but, as to each, their respective interests in the trust estate was intestate property; and that if such trust property did pass to the legatees named in their wills that there is a resulting trust in favor of their respective heirs at law; and that with reference to the will of Mrs. Howe there was an express trust. The single justice rightly excluded the evidence offered. The mistaken belief of Mrs. Howe and Mrs. Brackett that they owned only a life estate in the trust fund, which they did not intend to dispose of by will, cannot be shown to affect the validity of the bequests thereunder. Polsey v. Newton, 199 Mass. 450, 454. Whitman v. Whitney, 225 Mass. 213. It follows that no part of the.trust estate which vested in Mrs. Brackett and in Mrs. Howe was left undisposed of by their wills, but that their respective shares therein became vested in the legatees named in their wills. 3. Augustus Anson Whitney owned a vested interest in one half of the trust estate under the eighth and eleventh clauses of the will of his mother, Susannah Whitney. He also inherited from his brother Benjamin W. Whitney, who died intestate and unmarried, one eighth of the trust estate, so that upon his (Augustus’) death in 1891, he owned five eighths of the trust fund. He died intestate without issue and left a widow, Evelyn A. Whitney. An important question to be determined is, did the widow take as statutory heir of her husband any part of the trust estate? It is agreed in writing by the parties “that Augustus Anson Whitney referred to in the petition left personal estate at his death exceeding $10,000 in value in excess of debts and expenses of administration and exclusive of any interest in the trust fund created by the will of Susannah Whitney.” The contention is made by the defendants, Ellen M. and Martha E. Sawyer, who are the heirs at law and next of kin of Evelyn A. Whitney, that upon the death of Augustus A. Whitney, intestate [24] and without issue, a future interest in one half of the personal property belonging to the trust became vested in his widow under the eleventh clause of the will. It is the contention of certain of the defendants, that the widow of Augustus never became entitled to any part of the trust fund, that as the eighth clause of the will created a trust which related solely to real estate, and as the interest of Augustus therein was a vested remainder in property held in trust, that his widow did not take as statutory heir. Watson v. Watson, 150 Mass. 84. Baker v. Baker, 167 Mass. 575. The eleventh clause of the will created a trust in a portion of the "residue of my estate, both real personal and mixed,” to hold “upon the same trusts and subject to the same mediate and final disposal as expressed in the eighth clause of this my will.” It is contended that the language quoted shows that the testatrix intended that the trust property included in the eleventh clause and consisting of real and personal property should be finally disposed of in accordance with the eighth clause, and that under the latter clause the estate consisting wholly of real estate went to the heirs at law of the sons to the exclusion of any right of the son’s widow. In other words, it is the contention of the defendants who deny that any estate became vested in the widow, that the “final disposal” of the entire trust estate, both real and personal, was to be the same, and for that purpose was all to be treated as real estate. If so, it is plain that the widow took no part of the trust estate because at that time future interests in real estate did not vest in a widow. Pub. Sts. c. 135, § 3, as amended by St. 1882, c. 141, and St. 1885, c. 276. The law has since been changed in this respect so that a widow may now take an interest in lands, although her husband held in his lifetime only an estate therein in remainder. R. L. c. 140, § 3, cl. 3, as amended by St. 1905, c. 256. Walden v. Walden, 213 Mass. 418. The words above quoted from the eleventh clause of the will are not decisive against the contention of the defendants who claim that the widow took as statutory heir. Before his death Augustus A. Whitney had a vested remainder in a contingent equitable estate consisting of personal as well as real property. We are of opinion that such property, both real and personal, which passed [25] from Augustus at his death passed by descent and the laws of distribution, and not under the will of his mother, Susannah Whitney, and therefore that the provision above referred to in the eleventh clause of her will is not applicable to the descent and distribution of his estate. The eleventh clause which relates to the "final disposal” of the trust estate is to be construed to mean that only the life interests in the daughters of the testatrix, and remainders in their issue or in her sons, in her real and personal property described in the eleventh clause, should be the same as the real estate given by the eighth clause; she did not intend to control or direct the disposition of the residue of the trust estate after it had become vested in her sons, Augustus and Benjamin, the remaindermen. The law relating to the distribution of personal estate as it existed in 1891, when the death of Augustus A. Whitney occurred, was contained in Pub. Sts. c. 135, § 3, as amended by St. 1882, c. 141, and St. 1885, c. 276. "Sect. 3. When a person dies possessed of personal estate not lawfully disposed of by will, it shall be applied and distributed as follows: — “Fifth. If he leaves a widow and no issue, the widow shall be entitled to the whole of the residue to the amount of five thousand dollars, and to one-half the excess of the residue above ten thousand dollars; . . .” The provisions of the R. L. c. 140, § 3, cl. 3, as amended by St. 1905, c. 256, extend the provisions of the Public Statutes to real estate and make certain other changes. It is to be noted that so far as the question under consideration is concerned, the rights of the widow were substantially the same under Pub. Sts. c. 135, § 3, as amended, as under the R. L. c. 140, § 3, as amended. In Walden v. Walden, supra, a case which was decided under R. L. c. 140, § 3, as amended by St. 1905, c. 256, it was held that the widow of a man who died intestate without issue takes a half interest in real estate in which her husband at the time of his death had a vested remainder, although subject to a life estate that terminated after his death. If under the statute a future interest in real estate passes to a widow, without doubt she would take such an interest in personal estate. [26] Under the statutes in force at the date of the death of Augustus A. Whitney, the right to a future interest in the personal estate of the fund passed to the widow and upon her decease became a part of her estate. Buswell v. Newcomb, 183 Mass. 111. O’Brien v. Lewis, 208 Mass. 515. Walden v. Walden, supra. Whitman v. Huefner, supra. As her husband was entitled to five eighths of the trust fund, his widow had a future interest in one half of the personal estate, or five sixteenths thereof, which her heirs at law are now entitled to receive. Buswell v. Newcomb, 183 Mass. 111, 114. Minot v. Purrington, 190 Mass. 336, 342. The plaintiff is instructed, as ordered by the single justice, that Ellen M. and Martha E. Sawyer, the next of kin of Evelyn A. Whitney, deceased, the widow of Augustus A.. Whitney, are entitled to receive five sixteenths of the personal property set out in the ninth paragraph of the bill less such proportional part of the expenses of the administration and disposition of the estate in the hands of the petitioner as may be allowed by the Probate Court upon his final accounting, and that such amount as so determined is to be paid over to Ellen M. and Martha E. Sawyer; that after such payment, the residue of the trust fund in his hands at the time of the final determination of the trust estate, is to be distributed one third to Badcliffe College, one sixth each to the Meadville Theological School and the Society for the Prevention of Cruelty to Children, and one ninth each to William L. Whitney, Lucy A. Whitney and Julia A. Wright. Decree affirmed.