Carpenter v. Smith

• Decision Date: 02 August 1950
• Docket Number: No. 1998,1998
• Citation: 77 R.I. 358,75 A.2d 413
• Parties: CARPENTER et al. v. SMITH et al. Eq.
• Court: Rhode Island Supreme Court

Page 413

75 A.2d 413

77 R.I. 358

CARPENTER et al. v. SMITH et al.

Eq. No. 1998.

Supreme Court of Rhode Island.

Aug. 2, 1950.

Swan, Keeney & Smith, Frederick W. O'Connell, Ernest A. Jenckes, all of Providence, for complainants.

Edwards & Angell, Elmer E. Tufts, Jr., John V. Kean, Sherwood & Clifford, Sidney Clifford, Raymond E. Jordan, Adler, Flint & Zucker, Walter Adler, Martin M. Zucker, all of Providence, Charles V. Ryan, of Springfield, Mass., Wilfrid E. McKenna, William S. Flynn, Swan, Keeney & Smith, Frederick W. O'Connell, Ernest A. Jenckes, all of Providence, Frank W. Campbell, of Boston, Mass., and Elmer S. Chace, of Providence, for various respondents.

BAKER, Justice.

This is a bill in equity for the construction of the will of Albert Walker, late of Providence, deceased, and for instructions to trustees thereunder. When the cause was ready for hearing for final decree in the superior court it was certified to this court for our determination in accordance with General Laws 1938, chapter 545, § 7.

The complainants are the surviving trustees named in and acting under certain provisions of the will. They and the respondents are alleged to be all the parties in interest. All respondents have entered their appearances, filed answers and joined in the prayer for construction. No minors, no person under any legal disability, no one in the military service and no unascertained or contingent interests are involved herein. Before certification certain testimony was taken by deposition.

It appears that the testator Albert Walker, a widower, died on September 21, 1904 at the age of seventy years, leaving a will dated September 14, 1903 which was duly admitted to probate by the probate court of the city of Providence. His wife had died in 1899 and he was survived only by a daughter Mabel Walker, who was thirty years of age when the will was executed and was unmarried and in poor health at the time of his death. His closest relatives, other than his daughter, were three nieces and a nephew, all children of deceased sisters. By his will, after providing in the usual manner for the payment of debts and expenses and after giving small legacies to his nieces, nephew and a few friends, he left the residue of his estate, which was substantial, to three trustees in trust for the benefit of his daughter Mabel. One of these trustees Franklin A. Balcom, of Mansfield, in the commonwealth of Massachusetts, described in the will as Frank A Balcom, died January 1, 1914 and the vacancy thus created never having been filled the two remaining trustees thereafter acted.

Following the testator's death his daughter continued to occupy the family home on Medway street in Providence where they had both resided and which was the only real estate owned by the testator at the time of his death. In accordance with the provisions of his will Hattie Maria Drown and Ida Frances Drown, sisters, who were friends of the family, moved into the home, looked out for the property and took care of Mabel Walker. The first-named sister died December 19, 1931 but Ida Frances Drown, who is now of an advanced age and in poor health, is still living there under the terms of the testator's will. Mabel Walker, who resided continuously in the home practically all her life, died March 24, 1948 at the age of seventy-five years unmarried and without issue, leaving as her heirs at law and next of kin four cousins of different degrees of consanguinity, one on the paternal side and three on the maternal side. Her death terminated the greater part of the trust and raised the questions propounded herein.

The material portion of the testator's will, namely, the residuary clause, omitting therefrom certain fractional distributions not in question, reads in part as follows:

'Tenth, All the rest and residue of my estate both real and personal and wheresoever the same may be situated of which I shall die seized and possessed, I give, devise and bequeath to Frank A. Balcom, of Mansfield, Massachusetts, Howard L. Carpenter, of Providence, Rhode Island and Ida Frances Drown, of Providence, Rhode Island, with power to sell, invest and reinvest but without liability for loss on such investments, to them and their heirs, but in strict trust nevertheless for the benefit of my daughter, Mabel Walker, upon the following terms and conditions:

'That my said trustees shall use the income from said trust estate and so much of the principal of the same as they may deem necessary for the comfortable support of my said daughter during her life. They shall provide my said daughter with a good home and maintainance including a competent housekeeper in the house I have built and provided for her use at No. 167 Medway Street, Providence, Rhode Island. In addition there to my said trustees shall offer to Hattie Maria Drown of Providence, Rhode Island, and Ida Frances Drown, of Providence, Rhode Island, a home and board with my said daughter, Mabel Walker, in my house aforesaid at No. 167 Medway Street, on condition that said Hattie Maria Drown and Ida Frances Drown render my said daughter such care and companionship as they may be able to do and should said Hattie Maria Drown and Ida Frances Drown, or either of them, survive my said daughter, this offer having been accepted and the conditions fulfilled by them, I direct my said trustees to allow them the free use of my said house and furniture at said No. 167 Medway Street as long as either of them may live without expense to them in the care and preservation of said house. In the event of the above arrangement, to wit, for the companionship and association between my said daughter, Mabel Walker, and said Hattie Maria Drown and Ida Frances Drown becoming unsatisfactory to my said daughter, the portion of this will relating to the continued support and maintainance of said Hattie Maria Drown and Ida Frances Drown shall cease and be of no effect.

'Upon the death of my said daughter, Mabel Walker, if she shall leave any issue, I give, devise and bequeath to her issue including the children of any deceased child per stirpes absolutely in fee simple, seven eighths (7/8) of my said trust estate which shall remain after the death of my said daughter, but if my said daughter shall die leaving no issue and shall also be at the time of her death single and sole, I direct that said seven eighths of said trust estate shall be disposed of as follows:

'One fourth (1/4) part thereof to my niece, Frances Baker, and her heirs, widow of John Baker, of Attleboro, Massachusetts, or in the event of her prior decease to any children that she may leave surviving her, and their heirs. * * *

'One sixteenth (1/16) part to Frank A. Balcom and his heirs, of Mansfield, Massachusetts or in the event of his prior decease to any children that he may leave surviving him.

'And I direct my said trustees to hold the remaining one eighth (1/8) part and to use so much thereof either of the principal or interest as they may deem necessary for the maintainance of my said house at No. 167 Medway Street, Providence, Rhode Island, during the lives of Hattie Maria Drown and Ida Frances Drown or the longest liver of them, for the payment of taxes, repairs, insurance, water rates and other necessary expenses, and upon the death of the survivor of said Hattie Maria Drown and Ida Frances Drown, my said trustees shall divide among those who were my legal representatives at the time of my decease and their heirs, per stirpes, share and share alike, said remaining one eighth (1/8) part of said trust estate and its accumulations, if any.'

The following questions are propounded to the court. '(a) Are the specified fractional shares of the portion of said trust estate which is distributable upon the death of said Mabel Walker without issue under the terms of the Tenth clause of said will of Albert Walker to be determined by taking the specified fractions (which fractions taken together amount to a total fraction of seven-eighths) of the whole of said trust estate or by taking such fractions of only seven-eighths of said trust estate? (b) Is the value of the house and land comprising the testator's said home at 167 Medway Street, Providence, Rhode Island and the furniture and furnishings therein to be included or excluded in determining the one-eighth share of said trust estate to be retained in trust until the death of said Ida Frances Drown under the terms of the Tenth clause of said will of Albert Walker? (c) Who is entitled to receive distribution upon the death of said Ida Frances Drown of the one-eighth share of said trust estate distributable upon her death under the terms of the Tenth clause of said will of Albert Walker to 'those who were my legal representatives at the time of my decease and their heirs, per stirpes, share and share alike'? (d) Who is entitled to receive distribution of the one-sixteenth share of said trust estate distributable upon the death of said Mabel Walker under the terms of the Tenth clause of said will of Albert Walker to 'Frank A. Balcom and his heirs, of Mansfield, Massachusetts, or in the event of his prior decease to any children that he may leave surviving him' said Frank A. Balcom having survived the testator and having predeceased said Mabel Walker without leaving any child surviving him?'

This court frequently has approved certain generally accepted rules of construction to be applied when it is called upon to determine the meaning of a will. First, it is the primary duty of the court to ascertain from the language of the will if possible the intent of the testator in disposing of his estate and to give effect thereto unless it is in violation of law. Second, in determining that intent the entire will must be construed together so as to form, if feasible, a consistent whole thus giving effect to every part of the instrument. Third, the court will ordinarily construe a will so as to avoid partial intestacy unless the...