Fiduciary Trust Co. v. Brown

Citation131 A.2d 191,152 Me. 360
PartiesFIDUCIARY TRUST CO., In Equity, v. Hope Wheeler BROWN et al.
Decision Date12 March 1957
CourtSupreme Judicial Court of Maine (US)

Fogg & Fogg, Augusta, for plaintiff.

John W. Huse, Boston, Mass., Philip E. Lamb, Gardiner, Locke, Campbell, Reid & Hebert, Augusta, for defendants.

Before WILLIAMSON, C. J., and WEBBER, BELIVEAU, TAPLEY, SULLIVAN and DUBORD, JJ.

DUBORD, Justice.

This is a bill in equity brought by Fiduciary Trust Company of Boston, Massachusetts, sole successor trustee under a declaration of trust executed by Elizabeth S. Haynes and Robert H. Gardiner, on May 16, 1911, and amended on June 12, 1918. The bill is brought against Hope Wheeler Brown of Belfast, Waldo County, Maine, Manchester Haynes Wheeler of Augusta, Kennebec County, Maine, Muriel S. Haynes, Letitia Haynes and Honora Haynes all of Weston, Middlesex County, Massachusetts.

The principal of the trust was contributed by Elizabeth S. Haynes and at the time the trust was set up, Elizabeth S. Haynes, had two natural daughters, the defendant, Muriel S. Haynes and Hope Manchester Wheeler. Hope Manchester Wheeler had a natural son born to her, the defendant, Manchester Haynes Wheeler. The defendant, Hope Wheeler Brown is the natural daughter of Manchester Haynes Wheeler, and was adopted by her grandmother, Hope Manchester Wheeler. The defendant, Muriel S. Haynes, adopted the defendants, Letitia Haynes and Honora Haynes. The three adoptions took place subsequent to the execution of the trust agreement and the amendment thereto. Two of the adoptions, including that of Hope Wheeler Brown, occurred after the death of Elizabeth S. Haynes and one of them occurred about one year before the death of Elizabeth.

The bill in equity alleges that the plaintiff, in its capacity as trustee, is uncertain as to how to distribute the income formerly payable to Hope Manchester Wheeler, and asks the Court to construe and interpret certain provisions of the trust agreement executed by Elizabeth S. Haynes and Robert H. Gardiner.

The pertinent paragraph of the indenture of trust, which gives rise to uncertainty on the part of the trustee is paragraph 1, which reads as follows:

'1. During the continuance of the trust to pay the net income thereof as often as quarterly to Hope Manchester Wheeler and Muriel Sturgis Haynes in equal shares during their lives, and on the death of either of them who shall leave issue surviving her the share of said income which she would have received shall be paid to such of her issue by right of representation as shall from time to time be living at the respective times of payment and on the death of either of them leaving no issue surviving her as well as in the case of the issue of one of them becoming extinct, the whole of said income shall be paid to the other if living, or if she be dead to such of her issue by right of representation as shall from time to time be living at the respective times of payment.'

As paragraphs 2 and 7 of the trust indenture, as well as the amendment thereto, may have some bearing upon the determination of the intention of the settlor of the trust, we insert them at this point.

'2. Twenty-one years after the death of the survivor of them and of Manchester Haynes Wheeler the principal of the fund whether said Elizabeth S. Haynes be then living or not shall be paid over to the persons and in the proportions to whom and in which it would then have been distributed under the intestate laws of Maine then in force if it had then been personal property and said Elizabeth S. Haynes had then owned it in her own right and had then died intestate.'

'7. If it shall at any time happen after the death of either said Hope or said Muriel that a child of hers shall have attained the age of thirty years the trustees may at any time thereafter, but only if they are satisfied that it will be for the best interest of such child, pay to him or her out of the principal of the fund such sum or sums as they may deem expedient, making in case of such payment such division as they shall deem just thereafter of the income from the remainder of the fund.'

Amendment. 'If at any time before the termination of the trust as provided in said Declaration there shall be living no issue of mine, then I direct that the trust shall terminate and the property be divided, one-half, or, if there be then living no issue of my niece, Rebecca Russell Dallett, the whole, to go to the issue then living by right of representation of my brother, Horace Russell Sturgis, and the other half or, if there be then living no issue of my said brother, the whole, to go to the issue then living by right of representation of my said niece, and, if there be then living no issue of either my said brother or my said niece, the whole principal, whether I be then living or not, shall be paid over to the persons and in the proportions to whom and in which it would have then have been distributed under the laws of Maine then in force if it had then been personal property and I had then owned it in my own right free of trust and had then died intestate.'

The bill in equity sets forth the provisions of the trust indenture about which doubt is expressed. The complete trust indenture is annexed to the bill, as an exhibit, and made a part thereof. Subsequently, the original bill in equity was amended by adding the alteration to the trust indenture.

The bill seeks instructions on the following points:----

(a) Whether Hope Wheeler Brown, adopted daughter of Hope Manchester

Wheeler, is entitled to share in the income as issue by right of representation of Hope Manchester Wheeler, or

(b) Whether Manchester Haynes Wheeler is entitled to the whole of said income formerly payable to his mother, Hope Manchester Wheeler; and

(c) Whether the two adopted daughters of Muriel S. Haynes will be entitled upon the death of their adoptive mother, to the share of the income payable to their adoptive mother, as the issue of said adoptive mother by right of representation.

All of the defendants filed answers joining in the prayer of the plaintiff for interpretation and instructions.

The defendant, Manchester Haynes Wheeler, in his answer, denies that Hope Wheeler Brown is the issue of Hope Manchester Wheeler, who by right of representation is entitled to share in the income payable under the trust indenture and claims that he is entitled to the entire income formerly payable to his now deceased mother, Hope Manchester Wheeler. In his answer he also advances the contention that in the event of the death of Muriel S. Haynes, her adopted daughters Letitia Haynes and Honora Haynes, will not be entitled to the share of their adoptive mother on his theory that they are not issue by right of representation of Muriel S. Haynes.

The defendant, Muriel S. Haynes filed an answer alleging that Hope Wheeler Brown is entitled, during her lifetime, to one-half of the trust income formerly payable to Hope Manchester Wheeler; that Manchester Haynes Wheeler, during the lifetime of Hope Wheeler Brown, is not entitled to all of the trust income; and she further contends in her answer, that at her death, if either or both are living, her adopted daughters, Letitia and Honora Haynes, will be entitled to share in the trust income as her issue by right of representation.

The other defendants, Honora Haynes, Letitia Haynes, and Hope Wheeler Brown, filed similar answers in which they set up the contention that the adopted children are entitled to share in the trust income as issue by right of representation of their adoptive mothers.

In setting forth, in this opinion, the points upon which instructions are sought, and in briefly digesting the answers of the defendants, we have used the expression used by counsel for the plaintiff in its bill and by counsel for all the defendants in their answers, viz.: 'Issue by right of representation.' However, we point out that the legal question for our determination is whether or not the adopted children are 'issue' of their adoptive mothers, within the intention of the settor. In other words, taking as an example the case of Hope Wheeler Brown, if she is to share in the trust income previously payable to Hope Manchester Wheeler, she will share, not by right of representation, but on equal terms with her father, as 'issue' of Hope Manchester Wheeler, her grandmother and adoptive mother.

The expression 'by right of representation', used by the settlor, of course, has a bearing on her general intention and this point we will discuss later in this opinion.

The case was presented to the Court upon an agreed statement of facts, and is to be heard by this Court on report under authority of Section 24, Chapter 107, R.S.1954.

The only evidence for the consideration of this Court is the indenture of trust, the amendment thereto and the agreed statement of facts.

The agreed statement of facts reads as follows:

'Elizabeth S. Haynes and Robert H. Gardiner entered into an executed Declaration of Trust, dated May 16, 1911, a copy of which marked Exhibit A, is annexed to the bill which is a part of this agreed statement of facts. Elizabeth S. Haynes contributed the principal and was the settlor of the trust created by the said Declaration of Trust between herself and Robert H. Gardiner.

'The said Elizabeth S. Haynes and Robert H. Gardiner executed an alteration or amendment to said Declaration of Trust, which alteration or amendment was dated June 12, 1918, a copy of which is included in motion of Fiduciary Trust Company to amend its bill in equity which motion and amendment is a part of this agreed statement of facts.

'The said Elizabeth S. Haynes and Robert H. Gardiner are both deceased and Fiduciary Trust Company is the sole successor trustee of said Declaration of Trust as amended.

'The said Elizabeth S. Haynes had two children born to her, namely, the defendant, Muriel S. Haynes and Hope Manchester Wheeler, now deceased. Elizabeth S. Haynes...

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