Baker v. Brown , 146 Mass. 369 ( 1888 )

C. Allen, J.

It was decided in Broadway National Bank v. Adams, 133 Mass. 170, that the founder of a trust may secure the income of it to the object of his bounty, by providing that it shall not be alienable by him, or be subject to be taken by his creditors. Such provision need not be in express terms, but it is sufficient if the intention is clearly to be gathered from the instrument, when construed in the.light of the circumstances. The only question in the present case is, whether enough appears to show such intention.

The existing circumstances are not so fully disclosed as might be wished, but it appears that the testatrix was a married woman, possessed of real estate in this Commonwealth of the value of ten thousand dollars; the averment of other property is too vague to be considered as of any significance; and in her will she expressed her desire that her husband should have his support out of her property during his life, and therefore, after giving $2,100 in pecuniary legacies to other persons, she gave all the residue of her estate to two daughters, subject to the condition that they should support their father during his life. In one of the two cases now before us, it appears that the plaintiff recovered a judgment against the husband for about $160, a year before the will was executed, on which less than nine dollars had been paid ; in the other case, it does not appear when the plaintiff’s claim accrued. There is no averment in either case that the real estate was income producing, or that the husband had any property, income, business, or means of support, except from his daughters.

In the absence of anything to show the contrary, it may fairly be inferred that the daughters upon whom this duty of supporting their father was cast were of age, and that they were unmarried and lived with their parents. They retained their maiden names. There is nothing to show how much the estate would be diminislied by the debts which are referred to in the will, and by the funeral charges and expenses of administration. The residue must necessarily be quite moderate in amount. The will does not provide that the income of this residue shall be paid to the beneficiary, or devoted in whole to his use; there is no provision for the payment of any money at all to him; but his daughters are to support him. His age is not given, but he had five children, two married daughters, a son old enough to be appointed executor of the will, and the two daughters to whom the residue was given. In the absence of any averment to the contrary, it is a fair inference that he was pretty well along in years, poor, and dependent upon the support to be furnished by his daughters. There was probably some good reason why no bequest was made directly to him; it may have been his age, infirmity, incapacity, condition of indebtedness, or other reason not disclosed. It is sufficiently apparent that the testatrix intended that the trust imposed upon her daughters should be discharged by them personally, by furnishing to their father from time to time food, clothing, fuel, shelter, medicines, care, and nursing, as he might need them, and probably this support was to be furnished on the premises where they all lived. Assuming it to be true that they lived in a house owned by the testatrix, the case would be stronger for implying that the support was, in their option, to be there furnished, than in Parker v. Parker, 126 Mass. 433, or Dwelley v. Dwelley, 143 Mass. 509, in both of which cases it was held that the beneficiary had no right to demand a support elsewhei’e.

Clearly, the beneficiary has no right to the income of the devised estate, which he can control, but, to use the language of Lord Hatherley, the trustees are to apply the same, “ with their own hands, as it were,” to the use of their father. Chambers v. Smith, 3 App. Cas. 795. The- amount to be devoted to his support, and the manner of applying it, by continuing or receiving him as a member of their own household, by personal care and attention to his wants, or otherwise, rest wholly in their discretion, so long as they do not abuse their trust. Under this state of things, a court of equity will not put a valuation upon his necessary support, and order his daughters to pay it over to creditors, leaving him, it may be, to be supported by charity or by the town. A creditor’s claim is not so high as that. Broadway National Bank v. Adams, ubi supra, and cases there cited. See also Thackara v. Mintzer, 100 Penn. St. 151; Steib v. Whitehead, 111 Ill. 247; Lampert v. Haydel, 20 Mo. App. 616; Chambers v. Smith, 3 App. Cas. 795, 806, 807, 811, 812. Bills dismissed.