Butler v. Butler

• Decision Date: 03 July 1917
• Docket Number: No. 393.,393.
• Citation: 101 A. 115,40 R.I. 485
• Parties: BUTLER et al. v. BUTLER et al.
• Court: Rhode Island Supreme Court

101 A. 115

40 R.I. 485

BUTLER et al.

v. BUTLER et al.

No. 393.

Supreme Court of Rhode Island.

July 3, 1917.

Certified from Superior Court, Providence and Bristol Counties.

Suit by Hayward M. Butler and others, trustees under the will of John J. Butler, against D. Forrest Butler and others. On certificate from the superior court. Decree authorized in accordance with the opinion.

Gardner, Plrce & Thornley, of Providence, for complainants. Elisha C. Mowry, of Providence, for respondents. Butler. Fred A. Otis, of Providence, guardian ad litem, pro se.

VINCENT, J. This is a bill in equity brought in the superior court by the complainants as trustees under the will of John J. Butler. It appearing that all parties interested, or who might become interested, were represented, and that the only questions of law raised by said bill involved the construction of a will, the cause was certified to this court for determination under section 35, chapter 289, of the General Laws of 1909. The testator died May 22, 1916, leaving a widow, Laura E. Butler, and four children, Hayward M. Butler, Nettie B. Rice, the complainants, and D. Forrest Butler and Ward E. Butler, two of the respondents. By the residuary clause of the will the testator left a considerable amount of property to the complainants, as trustees, with directions to pay all his debts and after deducting the expenses of the trust to pay the net income as follows:

"To my wife during her life three-fifths and to my said daughter Nettie during her life two-fifths."

Without making any further provision as to the payment of income, the will disposes of the principal of the trust estate as follows:

"On the death of my said wife, and when my said son Ward shall have reached the age of twenty-eight years, I hereby direct and empower my said trustees to terminate said trust and distribute all my said estate, two-fifths to my said daughter Nettie and, one-fifth each to my said three sons, to each of them, their heirs, administrators and assigns forever, free from all trust and obligation, giving to my said trustees, discretion as to the substance and manner of such distribution. If, however, my said daughter Nettie be not then living, the then trustee shall distribute all my estate equally, share and share alike, to my children, their heirs, administrators and assigns, the share of any deceased child to go to the heirs of the body of said child, if any, the children of Nettie, if any, to take their mother's share."

The widow of the testator, Laura E. Butler, died January 30, 1917. The four children are all living; the son Ward E. Butler being of the age of 24 years, and unmarried. The testator's daughter, Nettie B. Rice, has no children. The other sons, Hayward M. Butler and D. Forrest Butler, have each one child. Both of these children are minors and are represented by a guardian ad litem, who also represents the interests of persons not ascertained and not yet in being who may be interested in the trust declared by said will.

The questions which have arisen in the course of the administration of the trust and which this court is asked to determine are as follows:

(1) Are the equitable estates in remainder r which shall take effect in possession upon the termination of the trust vested or contingent remainders?

(2) Should the complainants, as trustees, permit the three-fifths income of the trust estate—which would have gone to the testator's wife had she lived until the end of the trust—to accumulate and increase the corpus until the termination of said trust, or should they distribute said three-fifths income as it accrues? If the latter is correct, to whom and in what proportion should it be paid?

(3) In case said Nettie B. Rice should not be living at the time of the termination of said trust, would her children, if any, take collectively one-fourth or two-fifths of the corpus, and would the other three children of the testator—his three sons—if then living, each receive one-fourth or one-fifth of said estate?

(4) Would said trust terminate at once in case said Ward E. Butler should die before reaching the age of 28?

The primary and most important question to be determined is whether the equitable estates in remainder are vested or contingent. It will therefore be convenient, in the first instance, to designate the particular features which serve to distinguish a vested remainder from a contingent remainder. The distinguishing feature of a vested remainder is that there shall be a person or persons in being, ascertained and ready to take possession whenever and however the preceding estate may determine. In such case the interest vests at once, but the enjoyment of it is postponed. In the case of a contingent remainder, whether or not any estate shall vest in either right or possession, or who shall take it, depends on a future contingency. In such case not only the time of enjoyment, but the right to enjoy, is uncertain.

In applying these definitions to the question which we are now discussing, it must also be borne in mind— "that the law favors vesting very strongly, and will not regard a remainder as contingent, in the absence of very decisive terms of contingency, unless the provisions or implications of the will clearly require it, and that words expressive of future time are to be referred to the vesting in possession, if they reasonably can be, rather than to the vesting in right." In re Kenyon, 17 R. I. 149, 20 Atl. 294; Ross v. Nettleton, 24 R. I. 124, 127, 52 Atl. 676.

In Storrs v. Burgess, 29 R. I. 269, 273, 67 Atl. 731, 732, this court said, in quoting with approval from other authorities:

"Since contingent remainders have been recognized, the line between them and vested remainders is drawn as follows: A remainder is vested in A. when, throughout its continuance, A., or A. and his heirs, have the right to the immediate possession, whenever and however the preceding estates may determine," citing Johnson v. Edmond, 65 Conn. 492, 499, 33 Atl. 503; Starnes v. Hill, 112 N. C. 1, 9, 16 S. E. 1011, 22 L. R. A. 598. "The uncertainty which makes a gift contingent may be in the capacity of the devisee to take, or in the happening of an event upon which the gift is conditional."

The portions of the will of John J. Butler touching the matter of remainders providing that the trustees pay over the net income are as follows:

"To my wife during her life three-fifths and to my said daughter Nettie during her lite two-fifths. * * * On the death of my said wife, and when my said son Ward shall have reached the age of twenty-eight years, I hereby direct and empower my said trustees to terminate said trust and distribute all my said estate, two-fifths to my said daughter Nettie and, one-fifth each to my said three sons, to each of them, their heirs, administrators find assigns forever, free from all trust and obligation, giving to my said trustees, discretion as to the substance and manner of such distribution."

From this language, taken by itself, it could be easily determined that the remainders vested. The estate was certain and there were persons in being at the testator's death, ascertained and ready to take possession whenever the preceding estate should come to an end; that is, oh the death of the testator's wife and when the son Ward E. Butler should reach the age of 28 years. The delay would not have postponed the vesting, but only the enjoyment. The daughter, Nettie B. Rice, would have taken a vested remainder in two-fifths and each of the three sons a vested remainder in one-fifth of the corpus, to come into their possession at the termination of the trust.

Storrs v. Burgess, supra, is similar to the case at bar in that two things must happen before the remainder vested in possession; that is, that the wife should die and the daughter should attain the age of 24 years. In the ease at bar the wife must die and the son Ward reach the age of 28 years. The court held in Storrs v. Burgess that the daughter was given a vested remainder on the testator's death. See, also, Staples v. D'Wolf, 8 R. I. 74; Kelly v. Dike, 8 R. I. 436; Rogers v. Rogers, 11 R. I. 38; Clarkson v. Pell, 17 R. I. 646, 24 Atl. 110; Spencer v. Greene, 17 R. I. 727, 24 Atl. 742; Morgan v. Morgan, 20 R. I. 600, 40 Atl. 736.

It is reasonably certain in view of the authorities cited that we would be justified in holding that, under the provisions of the will, last above quoted, the remainders were vested. There is, however, a further provision in the will which must be considered in this connection. The testator goes on to say:

"If, however, my said daughter Nettie be not then living, the then trustee shall distribute all my estate equally, share and share alike, to my children, their heirs, administrators and assigns, the share of any deceased child to go to the heirs of the body of said child, if any, the children of Nettie, if any, to take their mother's share."

Do these words change the situation and make the remainder contingent instead of vested? They do not change the parties who would take at the expiration of the trust, except that it gives to Nettie's children, if any, in case of her death the mother's share and changes the proportion of the estate which ...