Cook v. First Untversalist Church

• Decision Date: 03 June 1901
• Citation: 23 R.I. 62,49 A. 389
• Parties: COOK v. FIRST UNTVERSALIST CHURCH et al.
• Court: Rhode Island Supreme Court

49 A. 389

23 R.I. 62

COOK

v. FIRST UNTVERSALIST CHURCH et al.

Supreme Court of Rhode Island.

June 3, 1901.

Bill in equity by Daniel A. Cook, executor of the will of Sarah E. Salisbury, against the First Universalist Church and others, legatees, for construction of the will.

Van Slyck & Mumford, for complainant.

Gonper G. Sweeney, Elmer J. Rathbun, and Seril C. Armstrong, for respondents.

ROGERS, J. This is a bill in equity for the construction of certain clauses of the will of Sarah E. Salisbury, who died February 3, 1899, at the age of 84, a widow, leaving neither children, father, nor mother surviving her. January 24, 1899, the testatrix made the will in question, disposing of all her property, which consisted entirely of personalty, in and by which, after providing for the payment of her debts and funeral expenses, and the investing of $100 to secure perpetual care for a cemetery lot in which a deceased brother was buried, she gave to the First Universalist Church of the city of Providence, for the use of the Sunday school, $100; to the same, to complete her pledge for the Japan mission connected with said church, $25; and to said church, for one year's pew rent, $10. She then gave to four other Universalist churches or religious organizations $100 each, and she made bequests to various individuals,—to some of specific articles, to others of money, and to still others of both specific articles and sums of money. The will gave varying sums of money to blood relations of tie testatrix of the same degree, and to some of the same degree she gave only specific articles, but no money. Thus, to her sister Frances Salisbury she gave $25; to her sister Emma K. Tracy, $50; and to her sister Ann Maria Bradford, no money, but only specific articles of personal property. So, in the case of her niece and nephew, children of her deceased brother James Salisbury, she gave to the niece specific articles, and to the nephew $50 in money and also specific articles. To some of the children of her living sisters, who, though blood relatives, would not be among her next of kin, she gave pecuniary legacies, and also to a daughter of a sister of testatrix's deceased husband and to such daughter's daughter she gave pecuniary legacies. To her niece Addie L. Baxter she gave $200, to be used to assist her in giving her (said Addie's) niece Marion a musical education, and to said Addie she gave a gold watch, to be given to the said Marion, and to the said Addie for her own use she gave $50. To the three minor children of Annie Vickery she gave $10 each, the same to be placed in the care of their grandmother Ann Maria Bradford, who was a sister of the testatrix, and who died March 17, 1899, shortly after the testatrix's death. For Nathan D. Cole and wife, he being the husband of a niece of the testatrix, she made this provision, viz.: "In case of my decease while in the family of Nathan D. Cole, I give to him $100 to defray any expenses that may occur; to Carrie H. Cole, wife of Nathan D., I give $200." The testatrix died at Mr. Cole's residence. The sixteenth clause was as follows, viz.: "As I am now at the time of the signing of this will so far advanced in life that the circumstances of my life will not be likely to so change as to make it necessary to make another will, I desire to put it on record that should the sum of money left by me at the time of my decease be more than sufficient for my executor to pay the sums named herein, then each heir of money shall receive the same per cent. of increase on the sum of money I have bequeathed to them; but should long-continued sickness or misfortune come to in before my mortal career is ended, and my money possession be reduced thereby, then let no favoritism be shown to my heirs of money, but let each suffer the same percentage of loss." All the beneficiaries, other than religious corporations, to whom pecuniary legacies were given in the said will, were related to the testatrix by blood or were connections by marriage, and all the beneficiaries receiving pecuniary legacies, or, when dead, their personal representatives, have been made parties respondent, guardians ad litem having been appointed for all minor respondents.

The complainant represents in his bill that from the personal property of which the said testatrix died possessed he, as executor, has paid all the debts and funeral expenses of the testatrix; all pecuniary legacies given in and by said will, except only the legacies of $10 each to the three children of Annie Vickery, to he praced in the care of their grandmother Ann Maria Bradford, now deceased, and except also such legacies as are given by the sixteenth clause of said will; that he has invested the sum of $100 to secure perpetual care for the lot in the cemetery, as provided for in the will; that he has delivered to the several legatees all articles specifically bequeathed in and by said will; that he has paid all expenses of administration which have accrued, excepting only the compensation for his own services as executor and the expenses incurred by him in said capacity for legal services; and that there remains in his hands as executor a large sum of money, so that after the payment of all expenses of administration hitherto unpaid, and all which may hereafter be incurred, there will still remain in his hands about $4,000, to be distributed in accordance with the provisions of the sixteenth clause of said will.

This suit now comes before the court on bill and answers, there being no dispute in regard to the facts, and the determination of the court is sought as to the construction of certain clauses of the will, and as to the effect thereof, and particularly in regard to the following questions, viz.: "(1) What persons, corporations, or classes of persons are entitled to a distributive share of the money now in the hands of the executor? (2) What persons or corporations were intended by the testatrix to be designated by the words 'heirs of money,' as used by her in the sixteenth clause of said will? (3) In case it shall be considered that the respondent the Pirst Universalist Church of Providence is entitled to a distributive share of the aforesaid money, is said First Universalist Church entitled to a share in said fund in respect to that portion of the bequest in the third clause of said will made for the purpose of completing the pledge of the testatrix for the Japan mission connected with the church, and with respect to the bequest to said church for one year's rent of pew? (4) Is the respondent Nathan D. Cole entitled to a distributive share of said money, with...