Mahoney v. Elizabeth

Pierce, J. These are two appeals in equity by certain life beneficiaries of trusts under the will of Patrick Kearins, late of Medford, from decrees entered in the Probate Court upon petitions of the trustee for instructions. All the appellants are children of said decedent. The first petition alleges that by paragraph 13 of said will the testator devised his homestead in Medford and Somerville, Massachusetts, to his trustees to be held “in trust for the benefit of my daughters . . . with power on the part of my said daughters to occupy said homestead, according to the provisions and requirements set forth in paragraph twenty of this will”; that said homestead is now being occupied by two of said daughters, Mary Louise Kearins and Agnes Elizabeth Kearins; that by reason of said paragraph 13 relating to the occupancy of said homestead “there is no income accruing to your petitioner as trustee” with which to pay present and future taxes, insurance and repairs on said trust estate; that the premises in question have been sold for nonpayment of real estate taxes assessed for the year 1929; that the taxes assessed for 1930 and 1931 are not paid and the petitioner as trustee has no funds with which to pay said taxes. All the material allegations of the petition are admitted by the appellants. The petitioner prays that he may be instructed (1) “whether he may use funds derived from other trusts under the same will of the testator Patrick Kearins to pay for the taxes, insurance, repairs, etc., on the said homestead [described by said paragraph 13] and, if so, from what trusts and in what proportions”; and (2) whether “he may exact from those who occupy the said homestead, an amount, as rent, — 136 — sufficient to pay the said taxes due, together with the insurance and repairs, the instalments and due dates thereof to be determined by your trustee in his discretion,” or in “such other manner” as “may seem just and proper” to the Probate Court. A decree was duly entered on said petition wherein the trustee was instructed: “That the trustee may pay the taxes, insurance and repairs on the said homestead property out of the income of other trusts created under the will for the benefit of the persons who occupied or do’ occupy the said homestead in accordance with the terms of the will, the amount to be paid from the income of the said other trusts to be a sum sufficient to pay the taxes, insurance and repairs for the period during which the beneficiaries have occupied or do occupy the said homestead.” The second petition alleges that by paragraph 6 of said will there was given in trust for Madeline Veronica Kearins, a daughter of the testator, for life, “with remainders over, according to the provisions of paragraph 20 of the will,” certain real estate therein described; that Madeline Veronica Kearins died on May 6,1929, unmarried and leaving no issue surviving her; that paragraph 20 of the said will in part provides that “Upon the death of any of said beneficiaries leaving issue, I direct my Trustees to continue to pay the net income of said trust to said issue until the youngest of said issue living at the time of the death of said beneficiary shall have become twenty-one (21) years of age, such issue taking by the right of representation and per stirpes, if they are not of the same degree of kindred to me. In the case of each trust, upon the youngest of said issue reaching the age of twenty-one (21) years, the trust property shall be paid over to them, free and discharged of all trust. Upon the death without issue, of any beneficiary above named, the share held for such beneficiary shall be divided up as nearly equally as may be among the surviving beneficiaries above named, if any of them are surviving. And if none of them shall be surviving at the time of the death of said beneficiary, then to my heirs at law determined as of the death of said beneficiary.” All the material allegations of the petition are — 137 — admitted by the appellants. The petitioner prays that he may be instructed (1) as to “the meaning of that part of paragraph 20 of the will . . . which is set out in paragraph 4 of this petition”; (2) “whether the trust of the parcels of real estate set forth in paragraph 2 of this petition should be terminated, and the real estate or its proceeds be distributed to the beneficiaries free and discharged of all trusts, and, if so, in what proportions”; (3) “whether these parcels of real estate should remain as part of the trust estate, in trust for the beneficiaries, and, if so, in what proportions”; (4) “what is the meaning of the words ‘among the surviving beneficiaries above named’ as used by the testator ... in paragraph 20 ... of his will”; (5) “whether the words ‘beneficiaries above named’ include only the daughters and son of the testator ... or whether the words include also the living issue named in sections b, c, d, of paragraph 5 of the within petition, and the unborn children mentioned in section (e) of the said paragraph 5”; and (6) “whether the trustee . . . should sell the parcels of real estate mentioned in paragraph 2 of this petition, in order to pay the overdue real estate taxes, and hold the proceeds subject to the order of this honorable court on this petition.” A decree was duly entered wherein the petitioner was instructed in part: “That the testator intended that the devise in trust for any child of his who died without issue should be divided equally among the trusts for his surviving children”; that “Madeline V. Kearins having predeceased her mother, the life tenant, without issue, the real estate left in trust for her is to be divided equally among the trusts for her surviving brother and sisters”; and that “The testator’s children are meant by the phrase ‘beneficiaries above named.’” From these decrees the appellants duly appealed to this court. In the first case under paragraph 13 of the will the trustee is directed to hold the premises described therein in trust for the benefit of certain named daughters, “with power on the part of my said daughters to occupy said homestead, according to the provisions and requirements set forth in paragraph twenty of this will.” It is plain that under this power the daughters named were given a bene-' — 138 — ficial interest in the homestead analogous to an equitable life estate. Assuming the power was exercised by any one of the daughters and that such an election created an equitable life estate in the donee, the rule is applicable, unless the will directs otherwise, that taxes, insurance, repairs and all incidental expenses of the ordinary maintenance of real estate held in trust shall be borne by the life tenant. “Taxes [insurance and repairs^) are properly payable out of the rent and income of real estate, and therefore constitute a proper charge upon those who have the actual and beneficial use and enjoyment of the estate for the time being.” Wiggin v. Swett, 6 Met. 194, at page 201. Bridge v. Bridge, 146 Mass. 373. Jordan v. Jordan, 192 Mass. 337. Spring v. Hollander, 261 Mass. 373. On the facts here disclosed the appellants contend that the testator intended to create merely a preferred right in his daughters to occupy the homestead premises without being required to pay anything by way of rent, or otherwise, as a condition of their occupancy, and the fact that the premises when occupied were nonproductive of income or rent from which the trustee could pay the taxes, insurance and repairs does not raise the presumption that the testator intended that the occupants of the premises should carry the burden of maintaining them. The decree of the Probate Court should be affirmed. In the second case we think it is the clear meaning of paragraph 20 of the will that the trust with respect to said real estate should not terminate on the death of the widow, and that it was the intention of the testator that the property should continue to be held by the trustee as a part of the trust estate. That such was his intention is manifest when due weight is attributed to all the language of the will. Boston Safe Deposit & Trust Co. v. Stratton, 259 Mass. 465, 470. In support of this view it is noticeable and significant that there is no direction to the trustee to pay over, distribute, transfer or convey the trust estate upon the death without issue of any named beneficiary. The provision of the will that “Upon the death without issue, of any beneficiary above named, the share held for — 139 — such beneficiary shall be divided up as nearly equally as may be among the surviving beneficiaries above named, if any of them are surviving” does not indicate an intention that in that event the trust shall terminate — the division being equally compatible with either continuance or termination; and the words “shall be divided” do not require, as the appellants contend, that the res of the trust shall be divided among the surviving brother and sisters of Madeline V. Kearins free from all trusts. See Silvey v. Howard, 6 Ad. & El. 253, wherein it is said that the words, “shall be equally divided unto and amongst ...” uncontrolled by clear proof of an opposite intention in other parts of the will, carry an estate for life only. This conclusion in respect to the intention of the testator finds confirmation when the words “shall be divided up as nearly equally as may be” are read in connection with the context in which they appear. It is to be noted that the income of the trust is to be paid “to said issue until the youngest of said issue living at the time of the death of said beneficiary shall have become twenty-one . . .”; that “In the case of each trust, upon the youngest of said issue reaching the age of twenty-one (21) years, the trust property shall be paid over to them, free and discharged of all trust.” These provisions show that when the draftsman intended the termination of the trust he had command of and used clear and appropriate language to effectuate that end. The absence of appropriate language specifically directing a termination of the trust is significant of an intention that the trust res should be divided without a termination of the trust. That the trust should not be determined and the estate divided equally is inferable from the further provision, “And if none of them [that is of the named “beneficiaries”] shall be surviving at the time of the death of said beneficiary, then to my heirs at law determined as of the death of said beneficiary.” Again the use of the word “beneficiaries” to describe the children of the testator in their character as cestuis que trust under the provisions of paragraphs 5-20, inclusive, is significant of and indicates the capacity in which the children take and the nature of the interest which they — 140 — receive. This choice of language is an indication that the share in question is to be divided among the surviving children, as beneficiaries of trusts continuing during their lives, in accordance with the terms of the will previously expressed. It follows that paragraphs numbered (1), (2), (3) and (6) of the decree of the Probate Court should be affirmed. Paragraphs numbered (4) and (5) are modified so that they are limited in their application to present circumstances and are not to be construed to provide for situations arising in the future consequent upon the death of Sarah P. Conlan or Rose Mary Conroy, leaving issue, followed by the death of one of the other children of the testator without issue. As so modified the decree is Affirmed.