Olney v. Balch , 154 Mass. 318 ( 1891 )

Allen, J.

Upon an examination of the various provisions of this will, which are thought to be somewhat inconsistent with each other, we are brought to the conclusion that, by the second clause of the seventh paragraph, the testatrix gave to each daughter authority to dispose by will of her proportion of the principal of the trust estate, to take effect only in the event that such daughter should die without issue. This authority might be qualified by the right of George to receive one thousand dollars annually, from the income of the whole property left in trust, during his life ; but as he died before either of his sisters, this need not be considered. Subject to this possible right, we think Sally S. Pickering had the right to make a disposition of her share of the principal, to take effect upon her death, and that the various provisions which are thought to give rights inconsistent with the exercise of this authority must be construed in subordination thereto.

She having executed a will making a disposition of her share in her mother’s estate, the property thus disposed of is deemed in equity to be a part of her assets, and subject to the demand of her creditors in preference to the claims of her voluntary appointees or legatees. Clapp v. Ingraham, 126 Mass. 200.

The question is raised whether the property should be administered by the trustees under the mother’s will, they paying over the property to the persons who are to receive it under the will of the daughter, or whether those trustees should pay it over to the daughter’s executors, to be administered by them. The latter seems to us to be the proper course. Creditors, if there are any, will present their claims to the executors, and will be barred within two years. The duty of the trustees is well discharged by paying over the requisite sum to the executors of the daughter’s will. If it, or any part of it, is needed for debts, the executors are the proper persons to ascertain and pay them. They can hold the property, exempt from suits, for a proper length of time, for this purpose. As a method of administration, it is more simple and convenient to treat the property as assets of the daughter’s estate, to be administered by her executors. Hayes v. Oatley, L. R. 14 Eq. 1. In re Hoskins trust, 5 Ch. D. 229, and 6 Ch. D. 281. We need not anticipate the question suggested by counsel, whether this property can be applied to debts before all other assets are exhausted.

In O'Donnell v. Barbey, 129 Mass. 453, where a trustee was directed to pay directly to a creditor of one who had exercised a power of appointment, the circumstances were peculiar. One Brooks had died, leaving no property of his own, but leaving a will in which he exercised a power of appointment. Barbey was his executor and appointee ; and, as executor, had refused to pay the claim of the plaintiff, who was a judgment creditor of Brooks. The appointed property was held in trust, and the plaintiff filed his bill against Barbey and the trustee, to establish his right to be paid from the appointed property. This right was established ; and it was said that the trustee should sell the property and pay the plaintiff. An examination of the briefs shows that the point was not taken that the money, if going to the plaintiff, should pass through the executor’s hands. The method there adopted, though highly proper under the circumstances which there existed,. is no rule for the present case. Decree accordingly.