Cahill v. Tanner

• Decision Date: 27 April 1921
• Docket Number: No. 508.,508.
• Citation: 113 A. 289
• Parties: CAHILL et al. v. TANNER et al.
• Court: Rhode Island Supreme Court

113 A. 289

CAHILL et al.

v. TANNER et al.

No. 508.

Supreme Court of Rhode Island.

April 27, 1921.

Appeal from Superior Court, Providence and Bristol Counties; Chester W. Barrows, Judge.

Suit by Agnes B. Cahill and others against Edwin G. Tanner and others. From a final decree dismissing the bill, complainants appeal. Appeal dismissed, and decree affirmed.

James E. Smith, Frederick W. O'Connell, and Swan, Keeney & Smith, all of Providence, for appellants.

Archambault & Archambault and Joshua Bell, all of Providence, for appellees.

SWEENEY, J. This is a bill in equity to impress a precatory trust upon real and personal estate devised and bequeathed by Thomas Costello to his wife, Adelia R. Costello. Demurrer to the bill was sustained by a justice of the superior court; final decree was entered dismissing the bill, and the cause has been duly brought to this court upon complainants' appeal.

The facts material to the determination of this appeal, as set forth in the bill of complaint, are: Thomas Costello died testate, July 21, 1911. His will, dated December 29, 1908, was duly admitted to probate, and its third paragraph is:

"All the rest, residue and remainder of my property and estate, real, personal, and mixed, * * * I give, devise, and bequeath to ray wife, Adelia R. Costello, to have and to hold the same, to her, the said" Adelia R. Costello, her heirs, executors, administrators, and assigns forever. I request that my said wife shall make a will devising and bequeathing so much of said property as may remain at the time of her death to my two sisters, Eliza J. Costello and Annie E. Costello, and my niece, Agnes B. Cahill, the survivors or survivor of them, share and share alike."

A reading of the will of Thomas Costello shows that it was written by an experienced person. The first paragraph directs the payment of his just debts and funeral expenses; the second gives his wife $5,000, in trust, for the benefit of his father; authorizes her, in her discretion, to use so much of the principal as may be necessary for his support and maintenance, if the income is insufficient; and, upon his death, so much of the trust property as remains is given to her absolutely, if living, and if not then to his said two sisters and niece or the survivors of them; and the fourth and last paragraph appoints his wife sole executrix, without bond or inventory.

Adelia R. Costello died August 13, 1920, intestate, thus failing to comply with her husband's request to make a will devising and bequeathing so much of said property as remained at the time of her death to his said sisters and niece.

The complainants, said sisters and niece, claim that so much of said property as remained at the time of Mrs. Costello's death should be charged with a precatory trust in their favor because of the testator's request to her to make a will giving them said property.

It is well established that the legal effect of the provisions of a will, plainly expressed, must prevail over an implied intention. Melcher, Petitioner, 24 R. I. 575, 54 Atl. 379; Grant v. Carpenter, 8 R. I. 36.

The third paragraph of said will gives Mrs. Costello an absolute estate in fee simple in said property. Her estate in fee simple would not be limited or reduced by the subsequent request that she make a will devising the property remaining at the time of her death to the persons named. In re Wood, 28 R. I. 290, 67 Atl. 8, 125 Am. St. Rep. 738; In re Kimball, 20 R. I. 619, 40 Atl. 847; Cooke v. Bucklin, 18 R. I. 666, 29 Atl. 840.

The complainants cite the case of Warner v. Bates, 98 Mass. 274, as an authority to sustain their position. In this case the court said:

"To create a (precatory) trust it must clearly appear that the testator intended to govern and control the conduct of the party to whom the language of...