Boston Safe Deposit & Trust Co. v. Park

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: FIELD
• Citation: Boston Safe Deposit & Trust Co. v. Park, 307 Mass. 255, 29 N.E.2d 977 (Mass. 1940)
• Decision Date: 14 November 1940
• Parties: BOSTON SAFE DEPOSIT & TRUST CO. v. PARK et al.

307 Mass. 255

29 N.E.2d 977

BOSTON SAFE DEPOSIT & TRUST CO.

v.PARK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 14, 1940.

Proceeding by the Boston Safe Deposit & Trust Company trustee under the will of Joel Thayer, deceased, against John Gray Park and others for instructions. From a decree entered therein, the defendants appeal.

Reversed.Appeal from Probate Court, Suffolk County; A. W. Dolan, Judge.

Argued before FIELD, C. J., and DONAHUE, LUMMUS and IUA, JJ.

R. W. Hardy, of Boston, stated the case.

W. F. Krayer, of Boston, for respondents John Gray Park and others.

G. M. Naylor, Jr., and C. E. Benson, Jr., both of Boston, for respondent New England Trust Co., executor.

FIELD, Chief Justice.

This is an appeal from a decree of the Probate Court entered upon a petition for instructions brought by the trustee under the will of Joel Thayer, late of Boston.

Joel Thayer, hereinafter called the testator, died November 21, 1868, leaving a will which was dated April 3, 1868, and proved December 21, 1868. Article Fourth of this will provided that ‘all the rest, residue and remainder of my property real, personal and mixed be equally divided among those of my children who shall survive me and the issue of any deceased child of mine, (such issue taking the share of said residue to which the parent would have been entitled if living at the time of my decease) but as hereinafter expressed and set forth,’ and thereafter provided, in each of seven paragraphs, for a child of the testator or the children of a deceased child of the testator, and, in some instances, for more remote descendants. The question upon which instruction is sought arises under paragraph numbered sixth of said Article Fourth, whereby provision is made for the children of the testator's deceased son, Joseph E. Thayer. At the death of the testator there were living two children of this deceased son-Hollis Thayer and Alice B. Thayer. Said paragraph sixth provided in part as follows: ‘I give, devise and bequeath to the Trustees hereinafter named one other equal share of said residue and remainder of my estate, ascertained as aforesaid to be held by them during the lives of both of the children of my deceased son Joseph E. Thayer, or the survivor of them, to have and to hold the said share of said residue of my estate to the said Trustees and the survivors and survivor of them, their and his heirs and successors in this trust as follows, viz., in trust to hold and manage, invest and re-invest respectively the real and personal estate hereby given and devised to said Trustees and after deducting from the rents and income thereof all necessary and usual incidental expenses and charges, then to pay the net rents and income at lest semi-annually to the children of my deceased son Joseph E. share and share alike, the issue of any deceased child of said Joseph E. to take the parents share by right of representation, during the life of the survivor of said children of my said son. And upon the decease of the surviving child of my said son I give, devise and bequeath absolutely and in fee simple to the issue of the child or children of my said son (such issue taking the parents share by right of representation) the aforesaid share of the residue of my estate hereby given and devised to said trustees. But in default of such issue of either of the children of my said son Joseph, I give, devise and bequeath the aforesaid share of the residue of my estate to my children then living, share and share alike, and to the issue of my children who may have deceased (such issue taking the parents share by right of representation),’ certain portions thereof to be held upon trusts set forth in other paragraphs of Article Fourth of the will.

Hollis Thayer, a child of the testator's deceased son Joseph E. Thayer, died unmarried in 1884. Alice B. Thayer, the other child of said Joseph E. Thayer, married Sidney W. Burgess in 1879 and died testate in 1936. Consequently she meets the description in the sixth paragraph of Article Fourth of the will of ‘the surviving child of my said son.’ The time, therefore, has arrived for the distribution of the principal of the trust fund disposed of by said sixth paragraph. Alice B. (Thayer) Burgess had three children, all of whom predeceased her. Her son Hollis B. Burgess, born in 1879, died in 1918, testate, never having had issue, leaving all his property to his wife, who was appointed executrix of his will. Her other two children, born respectively in 1880 and 1891, died unmarried and intestate. The matter in controversy is whether, in the events which have happened, the principal of the trust fund passed by the gift to ‘the issue of the child or children’ of said Joseph E. Thayer, or, on the other hand, by the gift ‘in default of such issue of either of the children’ of said Joseph E. Thayer to his children, if living, or the issue of any such children who may have deceased.

The judge of the Probate Court adopted the first of these alternatives and entered a decree ‘That the trust estate, so far as it consists of personalty, is to be distributed two-thirds (2/3) to the Executor of the Will of Alice B. Burgess and one-third (1/3) to the legal representative of the Estate of Hollis B. Burgess, and that so far as the trust estate consists of real estate, the same is now vested two-thirds (2/3) in the devisee under the will of Alice B. Burgess and one-third (1/3) in the devisee under the will of Hollis B. Burgess, or if said devisee be not living, in those claiming under her.’ None of the children of the testator survived said Alice B. (Thayer) Burgess, but there are descendants of the children of the testator, other than her father, Joseph E. Thayer, who are respondents in this case and have appealed from this decree.

It is clear that the gift to ‘the issue of the child or children’ of said Joseph E. Thayer and the gift ‘in default of such issue of either of the children’ aforesaid are alternative gifts. Obviously the word ‘issue’ has the same meaning in each of these phrases. The question for determination, in the events which have happened, is whether this word in both phrases refers to issue living at the termination of the trust, that is, at the death of the survivor of the children of Joseph E. Thayer, or to issue of one or both of these children, even if such issue are not living at the termination of the trust, or, in other words, whether ‘default of such issue’ means without there being any such issue living at the termination of the trust, or means without such issue ever having been born. In the decree appealed from the latter interpretation was adopted. The appellants contend that the former interpretation is correct.

On the interpretation adopted in the decree the gift in remainder, after the termination of the trust, vested in interest in a child born to either of the children of Joseph E. Thayer, subject, however, to being partially divested upon the birth of one or more other such children, but not to being divested by the death, before the termination of the trust, of the child in whom it had vested and possession and enjoyment only were postponed to the termination of the trust. The appellants contend that vesting in interest also was postponed until the termination of the trust, but that even if vesting in interest was not so postponed the vested interest of a child would be divested by the death of such child, without issue, before the termination of the trust.

1. The ‘cardinal rule in the interpretation of wills, to which all other rules must bend, is that the intention of the testator shall prevail, provided that it is consistent with the rules of law.’ McCurdy v. McCallum, 186 Mass. 464, 469, 72 N.E. 75;Devine v. Deckrow, 299 Mass. 28, 31, 11 N.E.2d 596. That intention ‘is to be ascertained from a study of the will as a whole in the light of the circumstances attending its execution (Crowell v. Chapman , 154 N.E. 397); using ordinary canons of interpretation only so far as they accomplish their purpose of aiding in the determination of that intent[ion], but giving to the few combinations of words which have come to be rules of property their legal effect (Temple v. Russell, 251 Mass. 231, 236, 146 N.E. 679 [49 A.L.R. 1]).’ Cammann v. Abbe, 258 Mass. 427, 429, 155 N.E. 438, 439.

2. In ascertaining the intention of the testator with respect to the matter now to be decided it is important to determine the meaning of the word ‘issue’ as used in the clauses in question. The governing rule of interpretation was stated in Welch v. Colt, 228 Mass. 511, 515, 117 N.E. 834: ‘The word issue ordinarily means all lineal descendants. * * * It is not usually equivalent to children, but is more comprehensive. * * * In all the cases where it has been held that in the particular context issue had the same significance as children, expressions have occurred elsewhere in the will indicative of an intent to employ the word in a narrow sense as meaning children. * * * Unless the circumstances manifest a testamentary purpose to attribute to the word issue a signification other than its common one, it will be construed as including, lineal descendants.’ We find nothing in the clauses in question in the present case, in the will as a whole, or in the circumstances attending its execution, showing ‘that the testator used the word issue as being synonymous with children or as having any other than its common meaning.’ See Welch v. Colt, 228 Mass. 511, 515, 117 N.E. 834, 836. On the contrary, the frequent use by the testator throughout the will of the word ‘issue’ in juxtaposition with the word ‘child’ or the word ‘children’ tends to show that he recognized the difference in meaning, particularly as the word ‘issue’ is used where a comprehensive term might naturally be employed after specific provision had been made for a child or children. See Gardiner v. Everett, 240 Mass. 536, 537-539, 134 N.E. 372. The phrase ...