R.I. Hosp. Trust Co. v. Thorndike

• Citation: 52 A. 873,24 R.I. 105
• Parties: RHODE ISLAND HOSPITAL TRUST CO. v. THORNDIKE et al.
• Decision Date: 21 April 1902
• Court: United States State Supreme Court of Rhode Island

52 A. 873

24 R.I. 105

RHODE ISLAND HOSPITAL TRUST CO.

v. THORNDIKE et al.

Supreme Court of Rhode Island.

April 21, 1902.

Bill of interpleader by the Rhode Island Hospital Trust Company against Hannah Thorndike and others. Decree ordered.

Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

Tillinghast & Tillinghast, for complainant.

Herbert Almy and John P. Lonsdale, for various respondents.

ROGERS, J. This is a bill in equity brought by the complainant corporation as trustee under the trusts of the will of the late Sarah Thorndike. It is in the nature of a bill of interpleader, and seeks the instruction of the court in the payment of a part of the income of a certain trust fund. The will placed $105,000 in trust, the income of $50,000 of which was to be paid to James F. Thorndike, son of the testatrix, during his life; and of the remaining $55,000 the sum of $10,000 was to be paid to each of his sons James Edward Thorndike and J. Prince Thorndike; $5,000 to each of his two sons Charles F. Thorndike and Herbert Arthur Thorndike; the income of $5,000 to or for the benefit of his son Samuel B. Thorndike for life; and the income of $5,000 each to his three daughters, Sally H. Clark, Caroline M. Thorndike, and Grace Thorndike, for life, respectively. In the language of the will: "Upon the death of said James F. Thorndike, or any of the above-named children of said James F. Thorndike, receiving interest according to the above provisions of this instrument, then the interest to which he or she would be entitled to be divided among the surviving brothers and sisters above named (and no part thereof in any event to go to any child or children of said James F. Thorndike not named in this instrument) in proportion to the sums above named. But if any one of the above-named children of James F. Thorndike die, leaving lawful issue, the interest or income to which said child if living would be entitled shall be paid to or for the support of such lawful issue. I do further order and direct that, upon the death of said James F. Thorndike and the last survivor of his above-named children, that part of said sum of $105,000 not previously paid out by my said trustee, to wit, to James Edward, J. Prince, Charles, and Herbert, shall be distributed and paid over to the lawful issue then living of any one or more of said children, to wit, the children of James F. Thorndike named in this instrument, in the same proportion in which they would be entitled if such child or children whose issue may so survive had died possessed of said trust property in his or her own right, and, if more than one, in equal shares." The bill alleges that the said James F. Thorndike died on the —— day of——, 18—, and that thereafter, and since the complainant became trustee, the proper proportional part of the income of said trust fund of $50,000 was paid to his son, the said James Edward Thorndike, during his life; that the said James Edward Thorndike died November 24, 1899, at Bayonne, in the state of New Jersey, where he then and for about two years prior thereto had lived with his family, which then consisted of Hannah Thorndike, who claims to be his widow, and to whom, the complainant is informed, he was married in England October 10, 1883, and with whom, the complainant is also informed, he ever after during his life lived as his wife, and his five children by her, who are all now living with her at said Bayonne,—the bill giving the names and ages of said children; that after the death of said James Edward Thorndike, and on December 13, 1899, the complainant received a letter from Elizabeth Gale Thorndike notifying it that she was the wife of said J.

E. Thorndike, giving the details of her marriage, and that he deserted her 17 years ago, since which time she has had no communication with him, and was surprised to learn that he had a wife other than herself and five children. The bill further alleges that in December, 1877, the complainant received from the said James E. Thorndike an order addressed to Charles H. Sheldon, who was then its secretary, directing the payment of certain money then shortly to become due to him (In the words of the order) "to my wife, Elizabeth Gale Thorndike." The bill further alleges that the complainant has made such inquiries as it has been able, by correspondence with the brothers and sisters of said James, and with public authorities, respecting the alleged marriage to Elizabeth Gale Thorndike, without being able to conclusively establish the facts respecting the same, or whether, if such marriage ever took place, it was ever dissolved or annulled by divorce or otherwise; and that under these circumstances, and more especially as the surviving brothers and sisters of said James E. Thorndike, or some of them, now claim that said James was in fact truly and legally married to the said Elizabeth, and that such marriage was never dissolved or annulled by divorce or otherwise, and also claim that, inasmuch as he left no issue by her, he left no issue entitled to the income of said trust fund, and that they, therefore, under the terms and limitations of said will, are now entitled to receive the said income from the complainant, it cannot safely pay over the same to any one without and except under the protection of the decree of this court. The bill further alleges that the said Charles.

F. Thorndike, brother of said James E. Thorndike, has deceased without leaving issue, and that the said J. Prince Thorndike, another brother of the said James E. Thorndike, has transferred his interest in his share of said income to his wife, Flora J. Thorndike, and prays that the respective parties respondent may interplead as between themselves as to their respective claims to the income of said trust fund of $50,000, and that the complainant may have the instruction of the court and the protection of its decree in paying over said income. Hannah Thorndike and her children, the alleged wife and children of the said James E. Thorndike, and all the surviving brothers and sisters of the said James E., being the surviving children of the said James F. Thorndike that are named in the said provision of the said Sarah Thorndike's will, together with Flora J. Thorndike, the transferee of the said J. Prince Thorndike's share of the income, are all made parties respondent; and the case is now before us upon bill, answers, and proofs, the minor children of the said James E. Thorndike being represented by their guardian ad litem.

Practically, the sole question in this case is, are the minor respondents the lawful issue of the said James E. Thorndike? That a ceremonial marriage, took place in England October 10, 1883, between their father and mother, before their birth, is shown by the evidence; and the question is thus narrowed down to whether their father at the time of such ceremonial marriage to their mother had a legal wife living, who is still living, and from whom he had never been divorced. Ail the respondents that are brothers or sisters of the said James E. Thorndike, with one exception, viz., J. Prince Thorndike, oppose the claims of the minor respondents, as does also the wife and transferee of said J. Prince Thorndike; and they contend that their brother, the said James E. Thorndike, died leaving no lawful issue.

The abovementioned Elizabeth Gale Thorndike, who is not a party to this suit, nor in any way pecuniarily interested in the result thereof (a woman of upwards of 62 years of age, living in West Somerville, Mass.), swore that in 1871 she (being an actress) and the said James E. Thorndike (a theatrical agent) were married at Rutherford Park, N. J., on July 12, 1871, by the Reverend Mansfield French, a Methodist minister, at the latter's house, and that his wife was a witness to the marriage ceremony; that Mr. French gave her no certificate of marriage, as he had none, but said he would send her one, which he neglected to do; that they went to the Reverend Mr. French's, from New York, as he was an old army friend of James E. Thorndike, they having served together on Gen. Rufus Saxton's staff during the Civil War; that on their return to New York after their marriage they went to living together as man and wife at the corner of South Fifth avenue and Bleecker street, and then, after a few weeks, went to Maiden, Mass., to her father's; that the said J. E. Thorndike introduced her after the marriage as his wife, and lived with her as such; that he so introduced her to her own relatives and to his relatives, which latter he frequently visited with her, making annual visits to some of their houses, until he deserted her, in 1882, and quit the country. He also introduced her to his friends as his wife, and constantly corresponded with her; and she produced various letters writt en by him to her, in which he calls her his wife, and subscribes himself as her husband in the most ardent terms of endearment. Thus in a letter dated August 31, 1872, in which he calls her father "father," he addresses her as "My own darling wife," and says, inter alia, "Thirty-six days since you started away from your husband. Only think of it! The longest time from each other since we were married." By 1881 the ardor of his letters had perceptibly cooled, but he still wrote her, with more or less frequency, when away from her, on subjects such as a husband and wife would, it seems to us, be likely to write about, such as clothes, personal and family matters, etc.; he addressing her as "Dear Lizzie," and signing himself as "Yrs, Ned," or "Affectionately, Ned"; the envelopes being directed sometimes to "Mrs. J. E. Thorndike," and sometimes to "Mrs. Lizzie Gale Thorndike." As late as July 16, 1881, he executed a deed, with his wife and her sister, of a lot of land, to one Mercy R. Talcott, in which the grantors were described as follows: "Know all men by these presents that we, James E. Thorndike, Elizabeth G. Thorndike, wife of said James...