Jones v. Old Colony Trust Co.

Rugg, C.J.

This is a suit in equity brought by an administrator for the recovery of property alleged to belong to the estate of his intestate. She transferred to the Old Colony Trust Company, hereafter called the defendant, deposits in banks and other securities. The transfer was made by instrument in writing and under seal in terms selling the legal title and delivering possession of all the property, described in detail in a schedule annexed, but upon specified trusts. Those trusts were to hold, manage, invest and reinvest in its sole discretion, with the widest powers in this respect, to pay the income during her life to the intestate or in accordance with her directions, and at her decease to liquidate the fund and distribute it among numerous named beneficiaries. Power was reserved to alter or amend the trust instrument in writing and to require the trustee to pay over to the settlor “at one time or from time to time such portion or all of the principal of the trust fund as may be requested” by her in writing.

The validity of this trust is established by Stone v. Hackett, 12 Gray, 227 . The instrument of trust there assailed, while slightly less explicit than the one in the case at bar, contained unequivocal power of modification and revocation with requirement for payment of income to the donor during his life. The power of management and control conferred upon the trustee in that case was less ample and unrestrained than in the case at bar. That case was decided more than sixty years ago. It has been cited many times, always with respect. It must be regarded as an unshaken authority. Doubtless many trusts have been declared in reliance upon the principle there established. It may be treated as a rule of property.

The validity of such a trust instrument, being under seal and accompanied by actual delivery of the property, is not open to successful attack because of want of consideration. This was a fully executed trust inter vivos. A purely voluntary trust will be upheld in such circumstances. Reservation of income to the settlor for life does not impair the validity of the trust. Viney v. Abbott, 109 Mass. 300 . Gerrish v. New Bedford Institution for Savings, 128 Mass. 159 . Chippendale v. North Adams Savings Bank, 222 Mass. 499, 502 .

*313 The power to change the terms of the trust does not affect the validity of the trust. Kelley v. Snow, 185 Mass. 288 .

The right in the donor to withdraw the principal of the trust does not defeat the trust. Stone v. Hackett, 12 Gray, 227 . Davis v. Ney, 125 Mass. 590 . Such unqualified right in reason stands on the same footing as the right to withdraw as and when required for the support of the donor, which has been upheld. Lovett v. Farnham, 169 Mass. 1 . The soundness of the decision in Stone v. Hackett is either affirmed or recognized in numerous cases where not absolutely essential to the judgment. Kendrick v. Ray, 173 Mass. 305, 310 . Seaman v. Harmon, 192 Mass. 5, 8 . Bone v. Holmes, 195 Mass. 495, 505 . Mackernan v. Fox, 220 Mass. 197, 200 .

The case of McEvoy v. Boston Five Cents Savings Bank, 201 Mass. 50 , is distinguishable. There the nominal trustee had none of the ordinary powers of a trustee and was in substance and effect only an agent of the donor. In many cases upon which the plaintiff relies the attempted creation of a trust or gift was held to be the equivalent of an agency or bailment. Hale v. Joslin, 134 Mass. 310 . Nutt v. Morse, 142 Mass. 1 . Stratton v. Athol Savings Bank, 213 Mass. 46 . Russell v. Webster, 213 Mass. 491 .

The gifts to take effect after the death of the settlor, while in some aspects having a testamentary appearance, became operative immediately upon the execution of the trust subject to the contingencies created by the trust instrument itself. There is nothing in that instrument which manifests a purpose to circumvent the statute of wills. The case on this point is within the authority of numerous decisions. Stone v. Hackett, 12 Gray, 227 . Davis v. Ney, 125 Mass. 590, 592 . Krell v. Codman, 154 Mass. 454 . Bromley v. Mitchell, 155 Mass. 509, 511 . Eaton v. Eaton, 233 Mass. 351, 370, 372 .

The class of cases illustrated by Williams v. Milton, 215 Mass. 1 , Frost v. Thompson, 219 Mass. 360 , Flint v. Codman, 247 Mass. 463, 469, 470 , and cases there collected, where elaborate instruments for the purpose of carrying on the business of managing estates and properties through the medium of trustees have been held to create partnerships, *314 has no relevancy to the issues here raised. Trust instruments of that nature are essentially designed for the conduct of commercial enterprises. They are not to be confused through analogies or otherwise with a strict trust like that created by the trust instrument here under examination.

The interlocutory decree is reversed and a decree is to be entered sustaining the demurrers.

' So ordered.