Chase v. Russell

Rugg, C. J. This is a petition by the Boston Safe Deposit and Trust Company, brought at the request of beneficiaries under the will of Walter G. Chase, for appointment as co-trustee under said will with Arthur H. Russell who was named in said will as trustee and duly appointed by the Probate Court and qualified as such on June 12, 1919, and who is still serving as trustee. The probate judge dismissed the petition and stated in his report that “if the prayer of the petition was within the discretion of the court, I would not grant it,” and then ruled as matter of law that he had no power to make an appointment under the circumstances disclosed. The question of law sought to be raised on this record is wholly moot and can have no effect upon the rights of the parties. This court is not established for the discussion and declaration of opinion concerning such questions. Sullivan v. Secretary of the Commonwealth, 233 Mass. 543. It is too clear for discussion that even if the Probate Court had power, the malting of the appointment rested in sound judicial discretion. Since it appears that on that ground the petitioner could not prevail whatever the law may be, there is no question of law to be decided. Decree affirmed.