Commercial Trust Co. of N. J. v. Clinton, No. 1997
| Court | Rhode Island Supreme Court |
| Writing for the Court | CONDON; CAPOTOSTO |
| Citation | 72 A.2d 836,77 R.I. 18 |
| Parties | COMMERCIAL TRUST CO. OF NEW JERSEY et al. v. CLINTON et al. Eq. |
| Docket Number | No. 1997 |
| Decision Date | 14 April 1950 |
Page 836
v.
CLINTON et al.
[77 R.I. 24] Alexander G. Teitz, Newport for complainants Georgiana Pelham Clinton and Elizabeth F. Romaine.
W. Ward Harvey, Newport, guardian ad litem.
Gabriel D. Russo, Newport, for respondents.
[77 R.I. 19] CONDON, Justice.
This bill in equity for the construction of the will of John Theodore C. Zerega being ready for hearing for final decree has been certified by the superior court to this court for our determination pursuant to general laws 1938, chapter 545, § 7.
The need for construction has arisen because of two inconsistent clauses of paragraph Seventh of the will. By clauses (a) and (b) of that paragraph the testator gave his residuary estate to certain trustees to invest and reinvest the same and to pay the net income therefrom, after certain specified charges and expenses, to Elizabeth Zerega Pelham Clinton, hereinafter referred to for convenience as Elizabeth Clinton, during her natural life. By several subsequent clauses he provided for the payment of such income and the ultimate distribution of the principal of the trust fund in the event of divers contingencies. Two of such contingencies are provided for in clauses (c) and (f) which are the inconsistent
Page 837
clauses hereinbefore mentioned. Those clauses read as follows:'(c) In the event of the death of the said Elizabeth Zerega Pelham Clinton prior to the deaths of Georgiana Pelham Clinton and Elizabeth F. Romaine, to pay over two-thirds of the income of this trust fund to the said Georgiana Pelham Clinton during her natural life and on the death of the said Georgiana Pelham Clinton to pay over two-thirds of the principal of this [77 R.I. 20] trust fund unto such person or persons as the said Georgiana Pelham Clinton may in her last will and testament direct. To pay over one-third of the income of this trust fund unto Elizabeth F. Romaine during her natural life and on the death of the said Elizabeth F. Romaine to pay over one-third of the principal of this trust fund unto such person or persons as the said Elizabeth F. Romaine may in her last will and testament direct.'
'(f) In the event of the death of the said Elizabeth Zerega Pelham Clinton prior to the deaths of the said Georgiana Pelham Clinton and Elizabeth F. Romaine to pay over the principal of this trust fund unto such person or persons as the said Elizabeth Zerega Pelham Clinton may in her last will and testament direct.'
Elizabeth Clinton died testate in 1946 in England leaving Georgiana Pelham Clinton, herinafter referred to as Georgiana Clinton, and Elizabeth F. Romaine surviving her. In these circumstances two conflicting claims have been advanced. It is contended on behalf of Georgiana Clinton and Elizabeth F. Romaine that the plan of the will as a whole indicates that the testator intended to use the word 'subsequent' in clause (f) instead of the word 'prior,' and that if effect is given to such intention by substituting the former word in place of the latter in that clause the apparent inconsistency will be removed. In support of their position they rely on the rule of testamentary construction that a word may be substituted whenever it is necessary to do so in order to carry out what seems to be the plain intention of the testator.
The executors under the will of Elizabeth Clinton contend that clauses (c) and (f) are obviously contradictory and irreconcilable, hence the former must give way to the latter in accordance with the rule of construction that when a later clause in a will is repugnant to an earlier clause, the later clause being the last expression of the testator's intention must prevail. They further contend that the rule relied on by their adversaries is predicated upon the [77 R.I. 21] existence of...
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Ryan v. Estate of Ryan, K.P. 08-752
...stand to the exclusion of an earlier clause to which it was clearly and irreconcilably repugnant." Commercial Trust Co. of N.J. v. Clinton, 77 R.I. 18, 23, 72 A.2d 836, 838 (R.I. 1950); see also Goffe v. Goffe, 37 R.I. 542, 94 A. 2, 6 (R.I. 1915) ("There is undoubtedly an irreconcilable con......
-
Ryan v. Estate of Ryan, K.P. 08-752
...stand to the exclusion of an earlier clause to which it was clearly and irreconcilably repugnant." Commercial Trust Co. of N.J. v. Clinton, 77 R.I. 18, 23, 72 A.2d 836, 838 (R.I. 1950); see also Goffe v. Goffe, 37 R.I. 542, 94 A. 2, 6 (R.I. 1915) ("There is undoubtedly an irreconcilable con......
-
Ryan v. Estate of Ryan, K.P. 08-752
...stand to the exclusion of an earlier clause to which it was clearly and irreconcilably repugnant." Commercial Trust Co. of N.J. v. Clinton, 77 R.I. 18, 23, 72 A.2d 836, 838 (R.I. 1950); see also Goffe v. Goffe, 37 R.I. 542, 94 A. 2, 6 (R.I. 1915) ("There is undoubtedly an irreconcilable con......
-
Ryan v. Estate of Ryan, K.P. 08-752
...stand to the exclusion of an earlier clause to which it was clearly and irreconcilably repugnant." Commercial Trust Co. of N.J. v. Clinton, 77 R.I. 18, 23, 72 A.2d 836, 838 (R.I. 1950); see also Goffe v. Goffe, 37 R.I. 542, 94 A. 2, 6 (R.I. 1915) ("There is undoubtedly an irreconcilable con......
-
Ryan v. Estate of Ryan, K.P. 08-752
...stand to the exclusion of an earlier clause to which it was clearly and irreconcilably repugnant." Commercial Trust Co. of N.J. v. Clinton, 77 R.I. 18, 23, 72 A.2d 836, 838 (R.I. 1950); see also Goffe v. Goffe, 37 R.I. 542, 94 A. 2, 6 (R.I. 1915) ("There is undoubtedly an irreconcilable con......
-
Ryan v. Estate of Ryan, K.P. 08-752
...stand to the exclusion of an earlier clause to which it was clearly and irreconcilably repugnant." Commercial Trust Co. of N.J. v. Clinton, 77 R.I. 18, 23, 72 A.2d 836, 838 (R.I. 1950); see also Goffe v. Goffe, 37 R.I. 542, 94 A. 2, 6 (R.I. 1915) ("There is undoubtedly an irreconcilable con......
-
Ryan v. Estate of Ryan, K.P. 08-752
...stand to the exclusion of an earlier clause to which it was clearly and irreconcilably repugnant." Commercial Trust Co. of N.J. v. Clinton, 77 R.I. 18, 23, 72 A.2d 836, 838 (R.I. 1950); see also Goffe v. Goffe, 37 R.I. 542, 94 A. 2, 6 (R.I. 1915) ("There is undoubtedly an irreconcilable con......
-
Ryan v. Estate of Ryan, K.P. 08-752
...stand to the exclusion of an earlier clause to which it was clearly and irreconcilably repugnant." Commercial Trust Co. of N.J. v. Clinton, 77 R.I. 18, 23, 72 A.2d 836, 838 (R.I. 1950); see also Goffe v. Goffe, 37 R.I. 542, 94 A. 2, 6 (R.I. 1915) ("There is undoubtedly an irreconcilable con......