Home EILEEN P. SPALDING & another vs. PHILIP W. SPALDING, JR. & others.

356 Mass. 729

December 2, 1969

On August 24, 1966, Eileen P. Spalding brought a libel for divorce against Philip W. Spalding, Jr. Upon this a decree nisi was entered on June 17, 1968. On January 29, 1968, she brought an equity petition against him in behalf of herself and her minor child, joining as respondents among others her mother-in-law, Mildred L. Spalding, and the State Street Bank and Trust Company, trustee under the will of Philip W. Spalding, her late father-in-law. In this petition she sought to obtain for support of herself and her minor child "income and/or principal" of the trust under the will of Philip W. Spalding. There were two demurrers to this petition, both of which were sustained. A decree dismissing the petition was entered. There was no error. The trust provides that during the lifetime of Mildred L. Spalding the trustee shall pay her the net income from the trust and such part of the principal "which the Trustee in its uncontrolled discretion shall deem necessary for her maintenance and support or for the maintenance and support or education of any child or children of . . . [Philip W. Spalding]." Upon her death the trust res is to be divided in equal shares for the children of the testator, each to receive the income of a half share until he or she achieves the age of twenty-five, when the principal of that half share is to be paid to each such child. The other half share is to be held in trust for the lifetime of the child with the net income therefrom to be paid the child. Each child is to have a power of appointment of the half share so held in trust. Since Mildred L. Spalding is still living Philip W. Spalding, Jr. has no present claim on the trust res and the equity petition is premature. See Burrage v. Bucknam, 301 Mass. 235, 238-239. The power lodged in the trustee to invade principal "in its uncontrolled discretion" for the maintenance, support and education of Philip W. Spalding, Jr. does not give to the petitioners an enforceable claim against the trust for their support.

Orders sustaining demurrers affirmed.

Decree dismissing petition in equity affirmed.

Home EDWARD COLLINGS & another [Note 1] vs. PIONEER SHADE & SCREEN CO. (and a companion case [Note 2] )

356 Mass. 729

December 2, 1969

On conflicting evidence which must be viewed in light most favorable to the plaintiffs, Kelly v. American Ry. Exp. Agency, Inc. 315 Mass. 301, the jury could find that the minor plaintiff, a ten year old schoolboy, was struck by the left front of a motor vehicle operated

Page 730

by the defendant Gareeb. They could find that the contact took place at a point in the roadway five feet beyond the midpoint of a posted school crossing intersection, and that Gareeb 200 feet away from the intersection had observed children crossing and assembling on the curb preparing to cross the intersection. On this view of the evidence there was no error in denying the defendants' motions for directed verdicts. There is no merit to the contention that the judge improperly permitted the recording of the verdicts for the plaintiffs. They were in proper form. The forms of verdicts for the defendants also handed to the judge, on which the word "Guilty" was written, were pure surplusage, were not inconsistent with the verdicts for the plaintiffs, and were explainable because the jurors were serving on both the civil and criminal sides of the court. The judge's denial of the request to propound a special question on the issue of contributory negligence was within his discretion. Mercier v. Union St. Ry. 234 Mass. 85, 87. Viaux v. John T. Scully Foundation Co. 247 Mass. 296, 301. Concededly the issues of negligence and contributory negligence had been fully covered in his charge. The foreman's explicit affirmation to the judge, in the presence of all his fellows in open court before the recording, that the jury did "by its verdict [in each case] intend to award the amount of damages that are written in words on the plaintiffs' verdict slips and signed by" the foreman is dispositive of the validity of the verdicts. See Lawrence v. Stearns, 11 Pick. 501; Rich v. Finley, 325 Mass. 99, 105-106, and cases cited.

Exceptions overruled.


[Note 1] Ernest E. Collings, father of the minor plaintiff.

[Note 2] Same plaintiffs against Adeeb A. Gareeb, operator of the motor vehicle