Billings v. Gladding

• Decision Date: 21 May 1937
• Docket Number: No. 1295.,1295.
• Parties: BILLINGS v. GLADDING.
• Court: Rhode Island Supreme Court

192 A. 216

BILLINGS

v. GLADDING.

No. 1295.

Supreme Court of Rhode Island.

May 21, 1937.

Case certified from Superior Court, Providence and Bristol Counties.

Bill in equity brought in the superior court, by Mary Louise Billings against Hope Gladding, for the construction of the will of Ardelia C. D. Gladding, late of the town of Barrington, deceased, and certified by the superior court to the Supreme Court under the provisions of General Laws 1923, c. 339, § 35. T. Dexter Clarke, the administrator de bonis non cum testamento annexo of the estate of Ardelia C. D. Gladding, deceased, was by order of the Supreme Court, made a party respondent.

Decree in accordance with opinion.

McGovern & Slattery, Fred B. Perkins, and William E. McCabe, all of Providence, for complainant. Walling & Walling, of Providence, for respondents. T. Dexter Clarke, of Providence, pro se.

CONDON, Justice.

This is a bill in equity brought in the superior court by this complainant for the construction of the will of Ardelia C. D. Gladding, late of the town of Barrington, deceased, and is certified by the superior court to this court under the provisions of General Laws 1923, c. 339, § 35.

The complainant is a niece of the testatrix and is one of the two beneficiaries named in the will. The respondent is a stepdaughter of the testatrix and the daughter, by his first marriage, of George Drown Gladding, the surviving husband of the testatrix, who was made the executor and the other beneficiary under the will of the testatrix. Since the death of the testatrix and the probate of her will, George Drown Gladding has died intestate, leaving surviving him, as his only heir at law and next of kin, Hope Gladding, the respondent.

Miss Gladding was duly served with a subpoena through her attorney, who accepted service thereof in her behalf, and filed an answer joining in the complainant's prayer, as contained in the bill of complaint, for the construction of the will.

Later, T. Dexter Clarke, Esq., the administrator d.b.n.c.t.a. of the estate of Ardelia C. D. Gladding, was, by order of this court, made a party respondent and he has filed a brief and argued the matter before us. The respondent, Hope Gladding, neither argued nor filed a brief in this court.

At the hearing in this court a question was raised by the court as to whether all adversary parties in a proceeding of this nature were before the court. The complainant ha's filed a supplementary brief on this point, to support her contention that the question as to what parties are necessary to a bill in equity for the construction of a will is quite different from that in the ordinary bill in equity.

The cases cited by complainant in this brief hold that only a bill brought specifically for the construction of, or for instructions relative to, a will or trust deed may be certified to this court under section 35, when ready for hearing for final decree. Newport Hospital v. Harvey, 47 R.I. 382, 133 A. 648; Maddalena v. Masso, 48 R.I. 92, 135 A. 601. They do not seem to bear upon the question of whether adversary parties are necessary to the validity of the proceeding. There is some inference from language at the bottom of page 93 of 48 R.I., at page 602 of 135 A., that all interested parties should be joined in a bill for construction. If we understand the complainant, she contends that, as this proceeding is quite different from the usual proceeding in equity, the strict requirement that adversary parties are necessary to a suit in equity does not obtain in this proceeding. However this may be, we have concluded, upon consideration, that there is a sufficient showing of adversary interests in the parties before us to warrant us in entertaining the case, but it must be understood, however, that only the parties and their privies in interest or estate will be bound by the decision.

Under the third paragraph of the will appears the following provision: "I give devise and bequeath to my husband George Drown Gladding all of my real estate and property real and personal wherever and however situated and including any real estate and personal property I may hereafter acquire to my husband George Drown Gladding and after his decease, the remainder to my niece Mary Louise Billings, Goffstown, N. H. daughter of B. Frank and Mary C. Billings of Goffstown, N. H." The complainant contends that it is not clear, from this language, whether George Drown Gladding received an absolute interest in the realty and personalty, or merely a life estate.

What was the intention of the testatrix in using the above-quoted language to dispose of her property? That is what we must ascertain first, before we can answer the main question, and we must seek that intention by a careful scrutiny of her whole will and the circumstances under which it was made. Hanley v. Fernell, 54 R.I. 84, 86, 170 A. 88. With this cardinal rule of construction in mind, we find no difficulty in reaching the conclusion that the testatrix intended that her niece Mary Louise Billings, at least on certain contingencies, should enjoy all or some of the property after the death of George Drown Gladding. We do not think that she has given her real property to her husband in language which clearly and unequivocally gave to him a title to such property in fee simple. Therefore, the interest thus given may be diminished by a subsequent disposition without violating the ratio decidendi laid down by this court in Re Howard, 52 R.I. 170, 172, 159 A. 143, 144.

In that case the court was called upon to construe the following clause in a will: "I give and bequeath to my brother John's great granddaughter, Grace C. Huling, all the rest and residue of my estate both real and personal of which I shall die seized and possessed of and wherever situated, whether it be acquired before or after the execution of this. Will, to her, her heirs and assigns forever, to be given in the following manner: if my decease shall occur before she shall have arrived at the age of twenty-one years the income from all bank deposits, bonds, stocks, notes, rents or otherwise shall be paid to her until that time when she shall come in full possession thereof." Construing these words, the court held that, as the language showed no intention on the part of the testator to deprive the beneficiary of full and complete ownership in the property, the fee was in the beneficiary, Grace C. Huling. It is obvious that the clause there construed bears no similarity to that which we are asked to construe in the instant case.

The rule of testamentary construction in this state of devises and bequests of this nature is "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." Rhode Island Hospital Trust Co. v. City of Woonsocket, 48 R.I. 345, 137 A. 411, 412; Cahill v. Tanner, 43 R.I. 403, 113 A. 289; In re Wood, 28 R.I. 290, 67 A. 8, 125 Am.St.Rep. 738; In re Will of Henry C. Kimball, 20 R.I. 619, 40 A. 847, 848. But in all of these cases, the court has recognized the rule above stated that the main intention of the testator is the cardinal rule of construction and must govern. Hanley v. Fernell, supra, and In re Howard, supra.

The...