Aldrich v. Aldrich

• Decision Date: 08 July 1920
• Docket Number: No. 471.,471.
• Citation: 110 A. 626
• Parties: ALDRICH et al. v. ALDRICH et al.
• Court: Rhode Island Supreme Court

110 A. 626

ALDRICH et al.

v. ALDRICH et al.

No. 471.

Supreme Court of Rhode Island.

July 8, 1920.

Case certified from Superior Court, Kent County.

Bill in equity by Edward B. Aldrich and others, individually and as trustees, against Winthrop W. Aldrich and others, for construction of the will of Nelson W. Aldrich, deceased. Certified to the Supreme Court under Gen. Laws 1909, c. 289, § 35. Decree advised in accordance with opinion.

Green, Hinckley & Allen, of Providence (Frederick W. Tillinghast and Clifford A. Kingsley, both of Providence, of counsel), for complainants.

James B. Littlefield, of Providence, guardian ad litem.

RATHBUN, J. This is a hill in equity for construction of the will of Nelson W. Aldrich. The cause was certified to this court by the suiterior court iu accordance with the provisions of section 35 of chapter 289 of the General Laws of 1909. Three of the testator's children, Edward B. Aldrich, Lucy T. Aldrich, and Richard S. Aldrich, bring this bill of complaint, individually and as trustees under said will, against Winthrop W. Aldrich Abby A. Rockefeller, Stuart M. Aldrich, William T. Aldrich, and Elsie Aidrich Edgell, who, together with the complainants, comprise all of the testator's children, and the 14 grandchildren, all infants under the age of 21 years. The parties comprise all of the testator's living descendants.

The testator died April 16, 1915, leaving a last will and testament bearing date July 29, 1908, which was duly admitted to probate. After making certain devises and bequests, which are not material for our consideration, the testator by the fourth clause of his will bequeathed outright to his daughter Abby A. Rockefeller $100,000, which is the only gift to her under the will. Testator next devised and bequeathed all the rest, residue, and remainder of his estate to four trustees, namely, his wife, Abby P. Aldrich, and the three complainants, in trust for the uses and purposes later expressed in the will. Abby P. Aldrich declined the trust, and the three complainants constitute the trustees under the will. The trustees are directed to manage the whole trust estate, keep up and maintain the Warwick Neck estate, and permit his wife and children to occupy and receive the benefits and products thereof, free of any charge during the continuance of the trust; to pay over from the balance of the net income during the continuance of the trust the sum of $8,000 per year to each of his children, except Abby A. Rockefeller; in the event of the decease of any child (except Mrs. Rockefeller), the lawful issue of such child then living to take by way of representation the share which the parent would have taken, if then living; that the balance of the net income be paid over to the testator's wife, Abby P. Aldrich, during the term of her natural life; that at the expiration of 12 years from the date of the testator's decease, or, in case his wife be living at that date, then upon her decease, the trust to terminate, and the trustees to pay over and convey, discharged of the trust, all of the trust estate then remaining in their hands, in equal shares, unto such of his children as are living, except Mrs. Rockefeller; that the lawful issue then living of any deceased child take by representation the share which their parent would have taken, if then living.

The testator's widow, Abby P. Aldrich, died on February 17, 1917. The bill avers that since her decease the trustees have annually received, and that henceforth during the period remaining until the termination of the trust—that is, until April 16, 1927—they will continue to receive, as net income of the residuary trust estate, an amount of money substantially in excess of the sums necessary for the proper upkeep and maintenance of the Warwick Neck estate and for the annual payment of $8,000 to each of the testator's children (except Mrs. Rockefeller) and their issue, as provided by the seventh clause of the will. The will makes no express provision as to the disposition of this surplus income.

The complainants, as trustees, desire to be instructed: (1) Whether the surplus net income received by the trustees after the decease of the testator's widow should be distributed as and when it accrues to the seven beneficiaries, who will, if living, be entitled to distribution upon the termination of the trust, and in case of their prior decease to their respective issue. (2) Whether such income should be distributed as intestate estate property as and when it accrues to the testator's eight children, and in case of their decease to their issue or their personal representatives, and, if so, whether to such issue or to such representatives. (3) Whether such income should be accumulated by the trustees until the termination of the trust. (4) Whether the interests of the said seven beneficiaries are vested or contingent.

The guardian ad litem filed an answer, submitting to the care and protection of the court both the rights of the grandchildren and the contingent interests of persons not in being or not ascertainable.

The five respondents, who are the children of the testator, have filed an answer, which admits the averments in the bill and states that they are advised, and therefore allege, that under the true construction of the will, after paying the expense of the upkeep of the Warwick Neck estate and the annual payment of $8,000 to each of the children (except Mrs. Rockefeller) of the testator, or their issue, as provided in the seventh clause of the will, it is the duty of said trustees, from and after the decease of testator's widow, to pay over and distribute such balance of the net income, as and when the same accrues, free from all trust, in equal shares to said seven children, or to their issue in the case of the decease of them, or any one of them.

A construction that the balance of the net income is intestate estate would favor Mrs. Rockefeller, as she would be entitled to one-eighth part thereof; but she also contends that such income passes to her brothers and sisters, to the exclusion of herself.

In the fifth clause the will provides that the trustees shall apply and pay over the balance of the income "during the continuance of this trust;" but the will fails to state how the balance of the net income, existing by reason of the decease of the testator's widow, during the continuance of the trust, shall be applied or to whom it shall be paid. The testator may have overlooked the possibility of his wife's decease during the period of the trust. He did carefully provide that, in the event she survived the 12-year period, the trust should continue until her decease. Had the testator's widow survived the 12-year period, the whole of the next income would have been paid to her, and the questions now presented would not have arisen.

It is clear that the will shows no intention of the testator that the surplus net income should be invested, to accumulate until the termination of the trust, and courts do not ordinarily infer an intention to accumulate income in the absence of language indicating such intention. See Rogers v. Rogers, 11 R. I. 38; Butler v. Butler, 40 R. I. 425, 101 Atl. 115. And as no express intention as to the disposition of the surplus net income can be found in the will, we will proceed, by applying well-settled rules of construction, to consider the legal effect of the language which the testator used.

The tenth clause of the will is as follows:

"Tenth. At the expiration of twelve years from the date of my decease, or in case my wife, Abby P. Aldrich, be living at that date, then upon her decease, the trust hereinbefore created shall terminate, and thereupon my said trustees shall pay over and convey, discharged of any trust concerning the same, all the trust estate then remaining in their hands in equal shares unto such of my children, Lucy T. Aldrich, Edward B. Aldrich, Stewart M. Aldrich, William T. Aldrich, Richard S. Aldrich, Winthrop W. Aldrich and Elsie Aldrich as shall then be living, and the lawful issue then living...