Barker v. Ashley

• Citation: 192 A. 304
• Decision Date: 25 May 1937
• Docket Number: No. 1277.,1277.
• Parties: BARKER et ux. v. ASHLEY et al.
• Court: United States State Supreme Court of Rhode Island

192 A. 304

BARKER et ux.

v. ASHLEY et al.

No. 1277.

Supreme Court of Rhode Island.

May 25, 1937.

Certified from Superior Court, Providence and Bristol Counties.

Suit by James Barker and wife against Ann L. Ashley and others to construe the will of William Henry Marshall, deceased. Certified from the Superior Court under Gen.Laws 1923, C. 339, § 35.

Decree construing the will.

McGovern & Slattery and James A. Higgins, all of Providence, for complainants. Roger L. McCarthy, of Providence, for respondents. Edmund J. Kelly, of Providence, guardian ad litem.

BAKER, Justice.

This bill in equity is brought to procure the construction of the will of William Henry Marshall, late of Warwick, deceased. The superior court, after taking formal proof, certified the cause to this court under the provisions of Gen.Laws 1923, c. 339, § 35.

From the record it appears that the testator died January 5, 1918, leaving the will in question, which was dated February 8, 1913, and was admitted to probate March 4, 1918. His widow, Ellen Marshall, died in Warwick, intestate, in November, 1931. William Henry Marshall at the time of his death was seized and possessed of certain real estate in the city of Warwick, and this property was not thereafter conveyed, alienated, or devised by his widow, to whom it was left under his will. The personal estate of the testator, which was not large, is not involved in this proceeding.

The complainants are husband and wife, James Barker being a nephew and heir at. law of Ellen Marshall. The respondents are all the known heirs at law of William Henry Marshall and all the other heirs at law of his wife, together with the beneficiaries under the will of one Mary Ratcliffe, a deceased sister of Ellen Marshall. A guardian ad litem was appointed for a minor respondent and to represent contingent interests and those of persons not in being and not ascertainable. The pleadjngs in the case have been properly closed. The body of the will now before us for consideration is as follows:

"This is a true statement that I William Henry Marshall will all that I possess at the time of my death both real estate and personal property to my Wife Ellen Marshall to have full control and to take effect the same day of my death without any incumberance or interference in any way to sell or draw any part or full amount of any of my accounts which stands in my name at the time of my death. If there is anything left after expences is paid at the time of both our deaths to be equally divided amongst Brothers and Sisters of both sides if Brothers or Sisters are dead to go to there Children excepting Brother John Barker his share to go to his Son James Barker less one hundred and fifty Dollars.

"Sister Martha Sutcliffe share is to go her Sons and Daughter Fred Sutcliffe and Llewellyn Sutcliffe and Ann Sutcliffe. If any trouble should occur we want the signatures to settle all trouble with charges."' Three questions are raised in the bill of complaint concerning this will, namely: "(1) What interest or estate in the above described real estate was devised to the said Ellen Marshall by the will of William Henry Marshall? (2) In the event that the Court should determine that said Ellen Marshall was devised an estate in said real estate for the term of her natural life, whether the remainders after said life estate vested at the time of the death of the testator William Henry Marshall or at the time of the death of the life tenant Ellen Marshall? (3) Whether the interest in said real estate devised to James Barker is charged with the payment of the sum of One Hundred Fifty Dollars, and if so, to whom should said sum be paid?"

The will, which is written in ink on letter paper, is inartistically drawn and its meaning is not entirely clear. Our first duty is to ascertain if possible the intent of the testator with reference to the disposition of his property. In the instant case, no evidence was presented to assist us in determining this question of his intent, and we are therefore obliged to turn to the language of the will itself in order to find the testator's purpose. In examining this document, it is necessary and proper to give consideration to the will as a whole and to all the testator's desires as expressed therein.

It seems reasonably plain that the testator's first-expressed intent was to leave all of his estate to his wife, giving her broad and general powers. He also evidently had a further desire which was that, if any of his estate remained after the death of both himself and his wife, it should be divided among certain persons as indicated by him in his will. The principal issue in this proceeding is whether or not this second-mentioned intent can be given effect and made operative.

The complainants and the guardian ad litem contend that it was the testator's intent that his wife should take an absolute estate in fee and that such intent is expressed in his will, and therefore that his apparent attempt to make a disposition of his property, if any should remain after the death of his wife, is repugnant to the absolute devise to her and cannot be made effective. On the other hand, the respondents claim that it was the testator's intent, as shown in his will, that his wife have an estate for her life only, and that it was then his purpose that his heirs and those of his wife should receive outright the remainder of the estate upon the death of the life tenant, thus carrying out what the respondents maintain was the testator's entire intent. It has been recognized in this state that a will may be so drawn that its terms do create such a repugnancy as the complainants and the guardian ad litem urge exists in the instrument we are considering. Touching this matter, the court, in Rhode Island Hospital Trust Co. v. City of Woonsocket, 48 R.I. 345, at page 347', 137 A. 411, 412, used this language: "It is a rule of testamentary construction in this state, in accordance with generally accepted principles, that, in case a testator has made a gift of an absolute estate in fee in land or an unconditional gift of personalty, a subsequent provision, inconsistent with the absolute nature of that gift, shall be regarded as a repugnant provision, and treated as void in law."

The will before us contains neither words of inheritance nor words expressly referring to a life estate in setting out the devise to the first taker, the wife. It is well settled in this state that it is not necessary for a testator to use words of inheritance in order to vest an absolute estate in fee in the devisee. Gen.Laws 1923, c. 298, § 14. Waterman v. Greene, 12 R.I. 483. The language used may show an intent on the part of a testator to give the devisee such absolute control over the property as would amount to an estate in fee. On the other hand, under the statute, a devise without words of limitation shall not be construed to pass the fee simple if a contrary intention shall appear by the will.

Cases generally similar to the instant case have been considered by this court. Pierce v. Simmons, 16 R.I. 689, 19 A. 242, was an action at law to recover a deposit made on the purchase price of a parcel of land where the validity of the title was attacked. The court held that the first taker vinder the will in question had the power to sell and convey the land. The devise therein involved was "to my wife, Abby Simmons, * * * to her and her only."...