Champagne v. Fortin

• Decision Date: 27 February 1943
• Docket Number: No. 1627.,1627.
• Citation: 30 A.2d 838
• Parties: CHAMPAGNE et al. v. FORTIN et al.
• Court: Rhode Island Supreme Court

30 A.2d 838

CHAMPAGNE et al.

v.FORTIN et al.

No. 1627.

Supreme Court of Rhode Island.

Feb. 27, 1943.

Certified from Superior Court, Providence and Bristol Counties.

Bill in equity by Marianne Champagne and others against Eugenie Fortin and others for the construction of the will of Mary L. Fortin, deceased, which was certified under Gen.Laws 1938, c. 545, § 7.

Decree in accordance with opinion.

Edward F. Dwyer, Eugene L. Jalbert, and Irving I. Zimmerman, all of Woonsocket, for complainants.

Higgins & Silverstein and Ovila Lambert, all of Woonsocket, for respondent Eugenie Fortin.

John A. Tillinghast, of Providence, for respondent Union Trust Co.

William B. Sweeney, of Providence, for respondent Old Colony Co-operative Bank.

CONDON, Justice.

This is a bill in equity for the construction of the will of Mary L. Fortin, late of the city of Woonsocket, deceased. Upon being ready for hearing for final decree in the superior court, it was certified to this court for determination in accordance with the mandate of General Laws 1938, chapter 545, § 7.

Mary L. Fortin died on July 18, 1919. She left surviving her three sons, John D. Joseph C., and Fred C. Fortin, and one daughter, Mary D. Desjardin. After bequeathing her household furniture and certain other personal property to Fred C. Fortin, she devised all the rest and residue of her estate to him and his heirs in trust. Under said trust each son was given an equal share in the net income thereof, and the daughter was also given such share, but only if her husband was not living. The will also provided that the share of income of any deceased child leaving issue was to be paid to such issue, and, in case of any deceased child without issue, its share was to go to the surviving child or children of the testatrix.

The will further provided that: “On the death of all of my said children, however, it is my will that my trustee or his successor in office shall convey to the children then living of my children (my grandchildren) all of said trust estate, free from the trust here created, in fee simple, to be and remain to them, their heirs and assigns forever.” It is this provision and the happening of certain events hereinafter described which have given rise to the present bill for construction.

The testatrix's daughter, Mary D. Desjardin, died intestate without issue on July 28, 1922, leaving her husband surviving her. Joseph C. Fortin died intestate without issue on August 19, 1933, leaving a widow surviving him but now deceased. On March 1, 1938, John D. Fortin died intestate without issue, leaving a widow who is now living. Fred C. Fortin was thus the sole surviving child of the testatrix and at the date of his brother John's death was married and childless. Thereafter, on July 5, 1938, he, in his capacity as trustee, petitioned the superior court for leave to sell the trust estate, which consisted of real estate. This petition was duly heard and granted and a decree was entered in that court authorizing Fred C. Fortin to purchase said real estate. Pursuant to such decree he made a conveyance thereof to himself and his wife Eugenie Y. Fortin as joint tenants.

On September 3, 1941, Fred C. Fortin died testate and without issue. He devised and bequeathed all his real and personal estate to his wife Eugenie Y. Fortin and appointed her executrix of his will. This will has been duly probated in the probate court of the city of Woonsocket and she has been confirmed and has qualified as such executrix.

Complainants are the brother, sisters and the issue of the deceased sisters of the testatrix. They claim title to her estate as her heirs because of the fact that, at the death of Fred C. Fortin, there was no grandchild of the testatrix in whom the beneficial fee simple could vest under her will. Complainants contend that in the circumstances a resulting trust arose for the benefit of the heirs of the testatrix upon the death of Fred C. Fortin without issue, when it became certain for the first time that there would be no grandchild to take under the will. They also contend that only those answering the description of heirs of the testatrix at such time are entitled to the estate and that they alone answer such description. They further contend that the respondents are estopped from denying such claim because of allegations in the petition of Fred C. Fortin to the superior court for leave to sell the trust estate, to the effect that a trust still existed, even though he was then the last surviving child and that he then knew he would never have children.

Complainants also contend, if we understand them correctly, that the testatrix intended that, in the event of a failure of grandchildren, her property should go to her brother and sisters and their heirs. They seek to show such an intention by testimony of witnesses, who were allowed to testify in the superior court, that the testatrix had told them that she had made her will so that all of her property was to go to her brother and sisters in the event that her children left no issue surviving them. Such testimony was admitted over the objection of the respondents, who contended that there was no ambiguity in the will and therefore such evidence dehors the will was inadmissible. Complainants contended that such testimony was admissible and should be considered in construing the testatrix's will, because there was an ambiguity therein as to the testatrix's use of the expression “children then living of my children”. And they also claimed that, in connection with such alleged ambiguity, there arose another as to the time when the testatrix intended that the class should be determined in whom the beneficial fee was to vest ultimately if no grandchild survived the death of her last child.

Respondents are Eugenie Y. Fortin, Union Trust Company and the Old Colony Co-operative Bank, and each has filed an answer, but only counsel for Eugenie Y. Fortin has filed a brief and argued in this court. The other respondents are mortgagees to whom Fred C. Fortin, as trustee, had, by leave of the superior court, mortgaged the trust estate. It was agreed at the hearing before us that their interests would be protected irrespective of the outcome of these proceedings. Hence, neither of them filed a brief nor made an oral argument in this court. We shall, therefore, hereinafter consider Eugenie Y. Fortin as though she were the only respondent.

She denies that the complainants are the heirs of the testatrix or that the testatrix intended by her will that they were to be the beneficiaries of her estate in the event that no grandchild survived the death of her last child. She further objects to the consideration by this court of any evidence of testatrix's intention dehors the will, on the ground that the testamentary language of the testatrix is clear and unambiguous and therefore parol evidence is not admissible to explain or alter her intention as expressed in her will. Respondent finally contends that there is no ground for the estoppel as alleged by complainants for the reason that Fred C. Fortin's allegations in the bill which he brought as trustee for leave to sell the trust estate are not inconsistent with the respondent's contention herein that he was the sole surviving heir of the testatrix and therefore as such was alone entitled to the equitable reversion in the fee.

We have carefully considered the contention of the complainants that there is a latent ambiguity in the will and we are of the opinion that it is without merit. There being no such ambiguity, evidence dehors the will of declarations by testatrix as to her intention cannot be considered. Such is the well-established rule that has long been followed and expounded by this court. Chapin v. Hill, 1 R.I. 446; Perry v. Hunter, 2 R.I. 80; Lewis v. Douglass, 14 R.I. 604; McGough v. Hughes, 18 R.I. 768, 30 A. 851; Matteson v. Brown, 33 R.I. 339, 80 A. 133; Hanley v. Fernell, 54 R.I. 84, 170 A. 88; Industrial Trust Co. v. Hall, 66 R.I. 201, 18 A.2d 629.

But the complainants argue that the language which the testatrix has used in providing for the ultimate disposition of the trust estate “to the children then living of my children” should, under the circumstances, be construed in the same sense as if she used the words “my legal heirs”, and that she intended that her property should go to her “heirs at law then living” in the event of no grandchild surviving the death of her last child. This is indeed a strained construction and is without any warrant whatever in the language of the testatrix to support it. Nowhere in her will is there the slightest intimation that she was contemplating any class other than her grandchildren as the ultimate beneficiaries of her residuary estate. Nor is there any expression in her will from which the implication would necessarily arise that she had in mind the possibility of all of her children dying without leaving issue and that, in such event, she would desire her brother and sisters to have her estate. On the contrary, it is obvious that she believed that there would be a surviving grandchild or grandchildren and therefore made no provision over in case of a failure of such grandchildren. In any event there is no room for construing the plain, unambiguous words of the testatrix, “children then living of my children” to mean her “heirs at law then living”.

If this were a case where the testatrix had made a gift over to her heirs or had used other language indicating an intention to direct the manner in which and the class to whom disposition of her estate should be made in the event of failure of her express devise to her grandchildren, then the proper construction of such language would be open to argument. But in the instant will we are confronted with a total absence of such a testamentary direction. Therefore, the question as to who is the ultimate beneficiary of the testatrix's estate in the circumstances is not...