O'Connell v. Frost
O'Connell v. Frost
Opinion of the Court
The trustees under the will of Walter E. Frost (Walter) filed a petition in the Probate Court for instructions. From a decree on that petition, the respondent Mary E. Buck has appealed. The case was heard upon statements of counsel and documentary evidence introduced before the probate judge. The evidence is reported.
Walter died June 24,1928, leaving as his heirs his widow Agnes, his brother Henry A. Frost, his sister Nellie M.
Walter, by his will dated January 11, 1928, left the residue of his estate to trustees, to pay the net income to Agnes during her life, with power to expend principal for her support. By art. Eighth, the trustees were directed to distribute the trust estate, after four monetary gifts, as follows: “E. The [r]est . . . then remaining, both principal and accumulations, if any, I give ... in equal shares to my brother, Henry A. Frost, and to my sister, Nellie M. Merritt; and in the event of their decease, or either of them, prior to my decease, then to his or her child or children and the issue of any deceased child by right of representation. In the event of the decease without issue of my sister Nellie M. Merritt, prior to my decease, the share intended for her shall revert to my brother, Henry A. or to his issue, in manner described in the first sentence of this paragraph” (emphasis supplied).
Walter’s widow, Agnes, died September 10, 1960. The trustees ask instructions, among other things, (a) whether the estates of Nellie M. Merritt and Henry A. Frost have vested interests in the trust fund, and (b) as to the persons entitled to share the trust estate. The decree of the Probate Court stated, among other things, that “there was a vested remainder in . . . Henry A. Frost, and in . . . Nellie M. Merritt, subject to being divested in the event of . . . [her] death without issue” and that “the trust is distributable to the surviving issue of . . . Henry A. Frost.”
In the circumstances, of course, one is tempted to speculate whether the draftsman of the will has been precise in the use of language (cf. New England Trust Co. v. Faxon, 343 Mass. 273, 280) and whether he would have achieved a result closer to Walter’s actual intention if he had written “prior to the decease of the last survivor of me and my wife” instead of “prior to my decease.” This must necessarily be a matter of pure speculation. After Agnes, his wife, his brother, Henry, and his sister, Nellie, were plainly
This is a proper case for applying the trust provisions just as the testator wrote them, giving to his language its usual legal meaning, without inserting any provisions by implication. We interpret the language of the will literally as giving to Henry and to Nellie each a remainder interest in one half of the trust fund existing at the death of Agnes, vested indefeasibly at Walter’s death. We perceive no language of the will sufficient to “manifest an intention that vesting ... be postponed until the death of” Agnes or that the vested remainder interests of either Henry or Nellie be divested if its owner should not survive Agnes. See Bamford v. Hathaway, 306 Mass. 160, 161. Cf. Doggett v. New England Trust Co. 327 Mass. 167, 169- 170.
This is not a case where there has been an omission of a disposition needed to prevent an intestacy (cf. Knowlton v. Forbush, 322 Mass. 703, 704-705; Balcom v. Balcom, 333 Mass. 599, 600-602) or of explicit language appropriate to carry out the testator’s apparent intention as indicated generally in the document. See, e.g., Goodwin v. New England Trust Co. 321 Mass. 502, 504-506; Fay v. Fay, 334 Mass. 311, 318-320; Boston Safe Deposit & Trust Co. v. Boston Safe Deposit & Trust Co. 343 Mass. 695, 698. There has been no palpably inadvertent omission of words. Cf. Hendrick v. Mitchell, 320 Mass. 155, 159-160. Nothing shows with certainty that the words of art. Eighth, E, were not used with the intention that they be given their usual meaning. See Whitbeck v. Aldrich, 341 Mass. 326, 329. See also Mahoney v. Grainger, 283 Mass. 189, 191-192; Page, Wills (Bowe-Parker ed.) § 13.6. In order to carry out a testator’s general scheme, we may, of
2. The decree of the Probate Court is reversed. A new decree, consistent with this opinion, is to be entered in the Probate Court (a) instructing the trustees that Henry A. Frost and Nellie M. Merritt at the death of Walter E. Frost each took an indefensibly vested remainder interest in one half of the balance of the trust fund left after the life interest of Agnes E. Frost; (b) answering the second and third requests for instructions appropriately in the light of the foregoing instruction; (c) providing appropriately for distribution of the balance remaining in the trust fund to the persons or fiduciaries now entitled to take the remainder shares of Henry A. Frost and Nellie M. Merritt, respectively; and (d) stating, as did par. 5 of the original decree, that the sum of $975 (see fn. 2, supra) shall remain a part of the trust fund and not become a part of the estate of Agnes E. Frost. Costs and expenses of past and future proceedings in the Probate Court and costs and expenses of this appeal are to be allowed in the discretion of the Probate Court, after consideration of the results of this appeal.
So ordered.
Nellie M. Merritt was born on February 28, 1865. Charles K. Frost was born on August 8, 1899.
We need not consider an instruction given by the Probate Court decree concerning the distribution of $975 of trust principal, which, except for the death of Agnes, would have been paid to her two days thereafter. No party now argues that this instruction given by the Probate Court decree was incorrect.
The provisions for gifts to Henry’s and Nellie’s issue, if Henry and Nellie should die before Walter, in some degree duplicate the “lapse” statuteG. L. c. 191, § 22. Even if the provisions were, in part at least, unnecessary, their literal meaning is not thereby affected. See Cotter v. Cotter, 293 Mass. 500, 503. See also Lyons v. Lyons, 313 Mass. 550, 552.
Reference
- Full Case Name
- Daniel T. O'Connell & another, trustees v. Charles Kimball Frost, individually and as & another
- Status
- Published