Connly v. McElroy

• Decision Date: 27 June 1924
• Docket Number: No. 639.,639.
• Parties: CONNLY et al. v. McELROY et al.
• Court: Rhode Island Supreme Court

125 A. 206

CONNLY et al.

v. McELROY et al.

No. 639.

Supreme Court of Rhode Island.

June 27, 1924.

Bill in equity brought by John J. Connly and others, as executors and trustees under the will of Mary A. McElroy, deceased, against Robert Bernard Banigan McElroy and others, for construction of will. Certified for decision under Gen. Laws 1923, c. 339, § 35. Questions answered.

Lee & McCanna and Thomas Z. Lee, all of Providence, for complainants.

John J. Mee, of Woonsocket, for respondent John H. McElroy.

Fitzgerald & Higgins and William H. Camfield, all of Providence, for respondent Elizabeth Keenan.

Swan, Keeney & Smith, of Providence, for respondents Blair.

Leo H. Leary, Sr., for respondent Leo H. Leary, Jr.

SWEETLAND, C. J. This is a bill in equity brought by the executors of and trustees under the will of Mary A. McElroy, late of Cumberland, deceased, asking for a construction of the fiftieth clause of said will, and for instructions relative thereto.

In the superior court the cause, being ready for hearing for final decree, was under the provisions of the statute certified to this court for determination.

By the fiftieth clause the testatrix bequeathed to trustees her estate in Cumberland known as Macsknoll Farm, in trust, among other things—

"to take possession of, hold and manage the same, to pay the taxes, assessments, insurance premiums and expense of repairs of all of said real and personal property, and in addition to such expense to pay the compensation of such agents, servants and employees as may be necessary for the safe keeping and upkeep of all of said premises and the property thereon, to such extent as my trustees shall deem advisable, and to permit my said son, John Holt McElroy, and my said faithful friend Elizabeth Keenan, to occupy the house, used by me as my residence at said Macsknoll Farm, as a residence free from rent for and during the natural life of my son John, or until his removal from the state of Rhode Island. And I hereby authorize my said trustees, in their discretion, to make such expenditures as they may deem advisable in connection with keeping said house suitable as such residence."

With regard to the provisions of the fiftieth clause quoted above the trustees ask for instructions as to whether or. not:

"(1) They are authorized to use the funds of said estate to the extent of providing and furnishing John H. McElroy with food, services of household servants and their food, heat, lighting and other advantages afforded him by said testatrix during her life; (2) they are authorized to make like expenditures for Elizabeth Keenan; (3) they are authorized to keep and maintain any part of Macsknoll Farm or the live stock or buildings thereon for the use of said John Holt McElroy and said Elizabeth Keenan, or either of them, in connection with keeping said house suitable as such residence; (4) if the above questions or any of them are answered in the affirmative, whether the expense shall be paid out of the funds, principal, and income, if any, derived from the trust created by the fiftieth clause of said will relating to the Macsknoll Farm property or from the funds, principal and income, of the trust of the residuary estate, created by said fiftieth and the fifty-first clause of said will, and if it be held that the said expense shall be paid out of the trust created by said fiftieth clause of said will, whether, if the funds of same are insufficient to meet such expense, the executors and trustees may use and apply the funds of said residuary trust, both principal and income, for such purpose."

It appeared in evidence that this farm in Cumberland was the principal place of residence of the testatrix; that she expended large sums in its upkeep, and that during the periods when she resided there her household expenses were very large. During the latter part of her life John H. McElroy resided with his mother when she was at the Cumberland farm, and as a member of her household he shared in the material comforts of her expensive household. At the time of his mother's death, in 1923, he was about 31 years of age, and of good health. Elizabeth Keenan had been a servant employed by the testatrix for many years.

The first point upon which the trustees seek instructions raises the question as to whether it was the intention of the testatrix to authorize the trustees to continue to maintain the household and housekeeping conducted by her at the Cumberland farm to an extent necessary to provide her son John with all the advantages which she afforded him there during her lifetime. In addition to indications of her intent to be derived from the natural import of the language employed by the testatrix negativing such intention, a consideration of the circumstances of the estate and the other provisions of the will indicates that such was not her intention. She had maintained a very expensive summer home at the farm, in the comfort and advantages of which she had freely permitted her son to share. Although her other expenditures were large, those of the farm to a great degree were responsible for the prodigal total. Her expenditures for years have been in excess of her income, for the last few years of her life amounting to three times her income, and she had drawn heavily upon the principal of her estate. The farm had not been conducted by her for profit, and she could not have contemplated that the trustees would be able to operate it to any considerable financial advantage. It is noticeable that in the provisions in regard to the execution of the trust in the farm the will makes no provision for the disposition of income. The assumption is warranted that the testatrix did...