
    Eileen P. Spalding & another vs. Philip W. Spalding, Jr. & others.
    December 2, 1969.
    
      Daniel Klubock for the'petitioners.
    
      John P. Morgan for the respondents State Street Bank & Trust Co., trustee, & others.
   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.  