Cowley v. Twombly

Devise and Legacy — Trust — Definiteness as to Beneficiary — Public Policy. A testator, by his will, gave to his son F. all the residue of his estate in trust, to sell and dispose of any or all of the real estate, and to invest the proceeds thereof in his discretion, and to pay from time to time in his discretion so much of the income of the trust property as he should deem necessary for her maintenance to the testator’s niece, J., or, instead of paying her any part of such income, to add it to the principal; and provided that the trust should continue so long as F. should remain the husband of M., then his wife, and for such time thereafter as F. should in his discretion desire and determine, but that it should not continue for more than ten years after he should cease to be M.’s husband; that upon the termination of the trust by the death or divorce of M. and the expiration of ten years thereafter, or of less than ten years if F. should so elect, he should have all the trust property as his own, free from any trust, and in fee; and that, in case F. should die prior to the death or divorce of his wife, all the trust property should go to J. in fee. Held, that the trust was valid.

Tort, by the administrator of the estate of Foster Ham, for the conversion of “ one sofa, one Winchester rifle, two tons of hay, and three hundred and twenty-five dollars in bills and notes.” Trial in the Superior Court, without a jury, before Braley, J., who reported the case for the determination of this court, in substance as follows. The plaintiff was duly appointed administrator of the estate of Foster Ham on April 5, 1898. Foster Ham was the only son and heir at law of Cyrus Ham, who died on March 21,1891, testate. Foster Ham was married in 1865 to Mary Jane Ham, who survived him as his widow. There had been for some time prior to the death of Cyrus attempts made by Foster to procure a divorce from Mary J.; and in 1870 he obtained a decree of divorce from her in Illinois. This decree was afterwards set aside. About 1875 he obtained another decree of divorce in New Hampshire, and subsequently remarried Mary J. In the fall of 1890 he filed a third application for divorce in this Commonwealth, which, being contested, was dismissed. Foster and Mary J. ceased to live together as husband and wife in 1893. On March 11,1891, Cyrus Ham made and executed his last will, which was duly admitted to probate, and Foster Ham was appointed executor thereof. The sixth clause of this will, which is the only part thereof material to this case, was as follows: “ I give, devise, and bequeath to my son, Foster Ham, all the real estate, and also all the personal estate, of which I shall die seised or possessed, excluding said legacies to Foster Ham, Esther S. Woods, and Frank Ham, and also my funeral expenses and debts, and the costs and charges incident to the settlement of my estate, to said Foster Ham, not for himself individually but as trustee in trust as follows: viz. said Foster Ham, as trustee under this my will, may in his discretion sell and dispose of any or all real estate coming to him under this will as such trustee, ‘ provided that the meadow lands and other lands adjoining the same shall not be sold at any less price than one hundred dollars per acre, and provided that my land known as the Dowse Lot shall not be sold at any less price than two thousand dollars; and said Foster Ham, as trustee of said property, may invest the proceeds of any sale or sales so made by him in other real estate, or in the stock of any joint stock or corporation, or otherwise, according to his best discretion, and may sell the same and reinvest the proceeds from sales so made by him in his discretion. So much of the rents and proceeds of real estate so held in trust by him, and so much of the interest or income of personal estate so held in trust by him, as he shall deem necessary for the comfortable maintenance of my deceased sister’s daughter, Mrs. Jennie S. Twombly, wife of Edgar F. Twombly, of Rochester in the State of New Hampshire, he, said trustee, may pay to her from time to time in his discretion; or he may, instead of paying the whole or any part of such rents, proceeds, interest, and income to said Jennie, add the whole or any part thereof to the principal of said trust property so held by him as trustee under this my will; and he shall not be compelled to pay anything to or for said Jennie except in his own discretion. And this trust shall continue so long as said Foster Ham shall remain the husband of Mary Jane Ham, now his wife, and for such time thereafter as said trustee shall in his discretion desire and determine, provided that the trust aforesaid shall not continue for more than ten years after said trustee shall cease to be the husband of said Mary Jane Ham. Upon the termination of said trust by the death or divorce of said Mary Jane Ham and the expiration of ten years thereafter, or of less than ten years if said trustee shall so elect, my will is that my said son, Foster Ham, shall have and retain all the real estate and all the personal estate then held by him as such trustee as his own, free from any further trust; to have and to hold the same to him, his heirs and assigns, to his and their use and behoof forever, free from any trust or obligation whatsoever. And in case my said son shall die prior to the death or divorce of his said wife, then my will is that all the real and personal estate held by my said son as trustee under this my will at the time of his decease shall descend to my said niece, Jennie S. Twombly, of Rochester, in the State of Hew Hampshire, to have and to hold the same to her, her heirs and assigns, forever.” On May 9, 1893, the Probate Court duly allowed the final account of Foster Ham, as executor of the will, which account showed that he had charged himself as such executor with real estate and personal property amounting to $11,773, and had credited himself with such amount paid over to himself as trustee. The parties represented as interested in the account, and who signed an assent to its allowance, were Foster Ham, trustee, and Jennie S. Twombly, the defendant in this case. The defendant, after the death of Foster Ham, took possession of the real and personal estate held by him. Among the personal property were two tons of hay in the barn, cut and stored before the death of Foster Ham; also one rifle, which never was the property of Cyrus Ham, but was the property of Foster Ham; a promissory note for $200 payable to the “ order of Foster Ham, trustee of estate of Cyrus Ham,” and made by one Parkhurst, from whom the defendant received the sum of $207 in payment of the note, and thereupon surrendered the note to him. The evidence showed that the sofa named in the declaration was the property of Cyrus Ham at the time of his death, and that the money which had been received by the defendant, amounting to $150, and which is described in the plaintiff’s declaration under the item of “ three hundred and twenty-five dollars in bills and notes,” was received as rents and profits of the real estate since the death of Foster Ham, with the exception of ten dollars which was due to him at the time of his death and subsequently collected by the defendant. The judge found that the sofa was w'orth $10, the rifle $15, the hay $40, and the note $207. The plaintiff asked the judge to rule that he was entitled to recover the value of the sofa, the hay, the note, and also the money received by the defendant as the rents and profits of the real estate. The judge refused so to rule ; and found and ordered judgment for the plaintiff for the value of the rifle. If the ruling was right, by agreement of the parties, the judgment was to be affirmed ; otherwise, judgment was to be entered for the plaintiff for $422, with interest from the date of the writ.