Citation Numbers: 286 Mass. 508
Judges: Rtjgg
Filed Date: 5/26/1934
Status: Precedential
Modified Date: 6/25/2022
This is a writ of entry. The relevant facts are that in 1913 Priscilla M. Smith, being then the owner of the demanded premises, executed an instrument, which was duly recorded, entitled “Deed and Declaration of Trust,” wherein she declared among other matters that she held the title in trust for the benefit of Mary A. Boothby during the term of her life. The third clause, so far as material, was in these words: “This trust may be terminated during the life of the said Mary A. Boothby upon her written request; in which event the trust property shall at once be deeded to said Mary A. Boothby by me or my successor free and discharged from said trust or from any interest of the remainder-men hereafter named, and in the event of my death, incapacity, or resignation, during her lifetime said Mary A. Boothby shall have the power to name a successor trustee.” The fourth clause contained power to the trustee to sell, mortgage or lease the property on the written assent of Mary A. Boothby, a power which has not been exercised and is not here material. Then follows this clause: ‘ ‘ and I hereby
Priscilla M. Smith died in 1915. In 1922, an instrument was executed by Mary A. Boothby in conformity to clause third of the trust instrument appointing Josephine M. Haberstroh trustee in succession to Priscilla M. Smith. This was duly recorded. The original trust instrument was delivered to Mrs. Haberstroh. In May, 1931, Mary A. Boothby gave instructions to an attorney at law to draw a deed reconveying the premises to her. Thereupon the attorney wrote at the end of the original trust instrument the following: “May 13, 1931 I, Mary A. Boothby of Boston, Massachusetts in accordance with the provisions of the third paragraph of the within deed and declaration of trust . . . hereby request that said trust may be terminated and hereby is terminated and I hereby request Josephine M. Haberstroh the present trustee to reconvey the trust property to me the said Mary A. Boothby free and discharged of said trust.” This request was then signed by Mrs. Boothby in the presence of both Mrs. Haberstroh and the attorney, and was witnessed by the latter. The original trust instrument was then delivered to Mrs. Haberstroh by the attorney. Into the deed of conveyance from Mrs. Haberstroh to Mrs. Boothby was written this: “and I the said trustee declare that this deed is given in accordance with the terms of a written request made to me by this grantee under power of paragraph 3 of said trust.” Mrs. Boothby died in 1933. The administrators of her
The judge of the Land Court found that the written request by Mrs. “Boothby and the conveyance to her by Mrs. Haberstroh were both made in strict accordance with the terms of the original trust instrument. This finding was amply warranted by the evidence recited in his decision and must be accepted as true.
The contention of the demandants in substance is that they are purchasers for value and acquired under the original trust instrument title in fee in remainder of the demanded premises after an estate for life in Mary A. Boothby, that before her death there was no valid written request terminating the trust and that the trust was not thus terminated, and that the written request not being entitled to record did not divest the demandants of their title. Requests embodying these contentions were denied by the judge of the Land Court.
The trust instrument contains no requirement to the effect that the request of Mary A. Boothby must be acknowledged or recorded. Its only provision is that the request must be in writing and that upon such request the property shall be deeded to Mary A. Boothby. The request manifestly was not intended by the parties to be a deed. It simply was an essential act preliminary to authority to execute the deed. There is no provision in G. L. (Ter. Ed.) c. 183 (which relates to the alienation of land and registration of deeds) requiring the record of such an instrument as
Judgment for tenant affirmed.