O'Brien v. Farrell

Jenney, J. The present and former trustees under the will of Sarah J. O’Neil having filed their final accounts in the Probate Cotut of Middlesex County, Elizabeth M. Farrell entered an appearance asking to be heard thereon. The trustees petitioned the Probate Court representing that she was not a party interested in the trust estate, and asking that her appearance might be stricken from the files. After hearing, a decree was entered on February 17, 1921, in accordance with the prayer of the petition, from which decree said Farrell took an appeal which is now before us, the judge of the Probate Court, under G. L. c. 215, § 11, having reported the material facts. The question involved depends upon the construction of the will of Sarah J. O’Neil who died on July 23, 1893, leaving as her only heirs and next of kin two daughters, Sarah T. O’Neil, (now Sarah T. O’Brien) and Rose A. O’Neil, the younger daughter, who was born on June 20, 1885, and died without issue on May 8, 1894. The testatrix also had two sisters, Mary A. Maguire, who died on April 6, 1914, and Elizabeth M. Farrell, the appellant, and a brother, Peter Treanor, who died on February 10, 1902. The material parts of the will are printed above. Under the clear provisions of the will, upon June 20, 1920, when Rose A. O’Neil, the younger daughter of the testatrix, “would have attained the age of thirty-five years, if she had continued to live,” it was the duty of the trustees to "pay over, divide and distribute the estate in trust remaining in their hands” to Sarah T. O’Neil, who was the surviving child of the testatrix, as her sister had died without issue. Elizabeth M. Farrell was to — 47 — take nothing in possession under the will unless both children died without issue before the date last stated. Both accounts were filed after Sarah T. O’Neil became entitled to the entire trust fund. Under no contingency thereafter arising could Elizabeth M. Farrell be entitled to anything under the will, hence she had no interest in the trust and no right to be heard on the allowance of the accounts. The procedure adopted to determine this question was proper. The trustees were not obliged to wait until a hearing upon the account and then raise the question of the interest of the appellant. Goff v. Britton, 182 Mass. 293, 295. The decree was rightly entered and must be affirmed. Ordered accordingly.