Mills v. Mills

The difficulty in the construction of the last will and testament of Dexter T. Mills, of Boston, arises out of the differing laws of New York from those of Massachusetts as to the power of suspension of alienation for more than two lives in being at the creation of the trust. The will of the testator was valid under the law of Massachusetts, but a portion of his estate consisted of real property, No. 80 Pearl street, in the city of New York. By his will the testator first directed his executors to pay all his just debts, “and all mortgages which may be upon any real estate owned by me at the time of my decease.” He then gives certain specific legacies, easily payable out of his personal property, leaving a balance of personalty, upon which, as well as upon his real estate, the remaining clauses of his will operated. The residuary clause of that will is as follows:

“All the rest, residue, and remainder o£ my estate, real, personal, and mixed, of every name and nature, of which I may die seised, possessed, or entitled, together with any legacy hereinbefore given which may lapse or become void by reason of the death of the legatee before my decease, I give, devise, and bequeath unto Arthur P. Mills and Horace G. Allen, of Boston, aforesaid, to have and to hold to them and their heirs and assigns forever, but in strict trust nevertheless for the following purposes, to wit: To pay the net income from said trust estate to such of the said Lavina Frances Mills, Ann Dexter Mills, Helen Whittington Goolidge, and Susan Lincoln Mills as may be living at my decease, in equal shares, 'for and during their respective lives; such payments to be made for their sole and separate use upon their own proper receipt in writing, free from all marital control or interference, and not by way of anticipation or in compliance with any assignment. Upon the death of either 'my said wife or any of my said daughters, after my decease, the income previously paid to such deceased under the terms of this trust shall thereafter be divided equally between such of my said wife and daughters as survive; it being my desire that the entire income from said trust fund shall be divided into as many parts or portions as there are survivors of my said wife and daughters from time to time. Upon the death of the last survivor of my said wife and daughters, I give, devise, and bequeath the property then held by said trustees or their successors as follows, to wit: Ten thousand dollars from said fund to the Home for Aged Couples in Boston. Five thousand dollars from said fund to the Home for Aged Men in Boston. Five thousand dollars from said fund to the Home for Aged Women in Boston. The entire residue and balance of said trust fund to the trustees of the Museum of Fine Arts in Boston, to have and to hold forever free and discharged of all trust herein created.”

The action here affects only the real estate in the city of New York. Was the power of alienation unduly suspended for more than two lives in being by the trust clause, and did the disposition of the residue, after the trust estate terminated, fall with an illegal crea

2. The remaining question arises out of the use of the sum of $9,000 by the executors in the city of Boston in paying out of the personal property the mortgage resting upon the real estate in New York. It is claimed by the Museum of Fine Arts that, as a portion of the personal property was diverted to ease the New York real estate from the burden of the mortgage, it should have the equitable right of subrogation, as against the New York property, to that amount. It is true that, considering the personalty and the realty as the residuary estate for the Museum of Fine Arts after the termination of the lives of the wife and daughters, this payment of the sum of $9,000 depleted the personalty that at some future time would be likely to go to the museum. It is also true that the customary rule is that the real estate must bear the burden of the payment of the mortgage where the mortgage is not a personal debt of the testator, as in this case; he buying this property in the city of New York subject to the mortgage, and covenanting to indemnify the mortgagor, but not assuming the payment himself. Did the scheme of the will, therefore, intend this mortgage to be paid out of the personalty, irrespective of any effect which that payment might have as to the rights of the beneficiaries in the will? The first disposing clause in that will directed the payment of all mortgages upon the testator’s real estate. The subsequent scheme of the will, instead of modifying the effect of that clause, strengthened its application to the claim here made. Viewing the situation from the eyes of the testator, he undoubtedly contemplated his will as effective upon all of the property passed by it. He looked forward to his widow and daughters enjoying the income of the New York estate as well as the rest, and it may not be supposed that he would deprive them of the enjoyment of that New York estate for their lives, or any portion of it, by the retention of a mortgage upon it which in all probability would have to be paid during their lives. And viewing the disposition of all his property as for their benefit during their lives, and to be enjoyed only by the Museum of Fine Arts after the decease of all, it follows as a necessary consequence that he intended the payment of the mortgage to be made out of property ultimately coming to the Museum of Fine Arts; that institution receiving this property only after the diminution of the amount thereof by the sum called for by the mortgage. There is therefore nothing whatever in the will, even viewing it for the purpose of the argument as valid in the contemplation of the testator, to subvert the direction for the payment of all the mortgages on his real estate, and to free that estate entirely from such burdens during the lives of his widow and daughters. We would rather infer that, if he had known the ineffectiveness of the trust as to the New York real estate, he would have preferred the widow and daughters to own it absolutely, freed from the burden of the mortgage, than that he would wish the amount of that mortgage to be held as a claim by the Museum of Fine Arts, which was not to .receive any of his property until that widow and those daughters had forever ceased to need any relief from its burdens. This view seems to be in accord with the rulings in similar

Let judgment be entered in conformity with the views of this opinion. Judgment accordingly.