Dorrance v. Greene

• Decision Date: 05 July 1918
• Docket Number: No. 418.,418.
• Citation: 104 A. 12
• Parties: DORRANCE et al. v. GREENE et al.
• Court: Rhode Island Supreme Court

104 A. 12

DORRANCE et al.

v. GREENE et al.

No. 418.

Supreme Court of Rhode Island.

July 5, 1918.

Certified from Superior Court, Providence and Bristol Counties.

Suit by Charles T. Dorrance and others, as trustees pro tempore under the will of Samuel Lamed, deceased, against W. Maxwell Greene, as administrator of Celia Lamed Greene, deceased, and others. Case certified to the Supreme Court. Decree ordered submitted.

Elisha C. Mowry, of Providence, for complainants.

Frank W. Hackett, of Washington, D. C, and Mendell W. Crane, of Providence, for Laura L. Sayles. Walter A. Edwards, Eliot G. Parkhurst, and Edwards & Angell, all of Providence, Richard W. Hale and George A. Moriarty, Jr., both of Boston, Mass., and Greenough, Easton & Cross and Frank T. Easton, all of Providence, for various respondents.

BAKER, J. This cause is a suit in equity, brought by the complainants in their capacity as trustees for the time being under the will of Samuel Larned, late of Providence, for instructions relating to the construction of said will. The complainants are also interested in the questions raised in their capacities as executors of the will of Katharine Celia (Larned) Greene, the testator's daughter, and as trustees under certain clauses of her will, and the complainant W. Maxwell Greene is also interested as administrator of the estate of Celia (Larned) Greene, the testator's widow, who remarried subsequent to his decease. Accordingly, in these capacities they have, with numerous other parties, been joined as defendants.

The case, being ready for hearing for final decree, has been certified to this court for final determination under General Laws 1909, c. 289, §35, upon bill, answers and proof, the bill having been taken as confessed against such parties as failed to answer.

The important facts disclosed by the evidence may be thus summarized: Samuel Larned died in December, 1846, leaving him surviving his widow, Celia Greene Larned, and a daughter, Katharine Celia Larned. He was the son of Wilriam Larned, and had 16 (or perhaps 18) brothers and sisters, whose numerous descendants, so far as known, are among the parties respondent. His will, dated November 28, 1846, about a month before his death, was admitted to probate in the municipal court of the city of Providence on January 26, 1847. His first provision was for his wife, to whom he gave $12,000 outright "in lieu of her dower or other interest in my real or personal estate." He also gave her two gifts not of a pecuniary nature. He then disposed of his household furnishings, made numerous small pecuniary gifts to relatives, friends, and servants, provided for several small annuities for relatives, and appointed his wife guardian of his daughter. The rest and remainder of his estate, both real and personal, he directed to be sold, and the proceeds to be paid over to three trustees, to whom he gave and bequeathed said proceeds in trust. The trustees were given power to invest in Rhode Island real estate, real estate mortgages and bank stock, and to change investments from time to time in their discretion. They were directed to make payment from the trust funds (1) of the annuities thereinbefore bequeathed; (2) of various annual sums for the testator's daughter, Katharine Celia Larned, the amount thereof being gradually increased for a certain period until it reached a maximum of $1,200 each year, said amount until her marriage to be paid annually to her guardian during her minority and to her upon reaching her majority; (3) to the Bishop of the Diocese of Rhode Island, for religious purposes, all surplus income not required for the foregoing payments until an aggregate sum of $4,050 had been so paid; (4) thereafter to invest any surplus income for the purposes of the trust; and (5) to pay to the testator's said daughter from and after her marriage during her life the whole of the income of the trust fund remaining after the foregoing payments. Then appear the provisions of the will which have given rise to the questions now before the court, as follows:

"And from and after the decease of my said daughter should she leave a child or children, the said trustees shall appropriate so much of the income of the said trust funds as may be necessary for the support of such child or children until the youngest of them shall attain the age of twenty-one years, or otherwise become of age—at which time they shall terminate their said trust by conveying to the child or children of my said daughter their heirs and assigns in equal shares all the estate real and personal then holden by them in trust.

"But if my said daughter shall decease without leaving any child or children living at the time of her decease, I then direct that the said trustees shall thereafter pay to my wife for her own use, if she has remained unmarried the annual sum of five hundred dollars so long as she remains unmarried—And shall also immediately thereafter pay the following sums to the persons hereafter named that is to say:

"My mother Mrs. Sarah Larned two hundred dollars.

"My brother William G. Larned one hundred dollars.

"My brother George Larned one thousand dollars.

"My sister Sarah S. Larned two hundred dollars.

"My sisters Laura S. Hallett and Abby S. Brown two hundred dollars each.

"My nephew William Larned two hundred dollars.

"My nephew Russell M. Larned five hundred dollars.

"My nephew Edwin C. Larned one thousand dollars.

"My nephew Charles H. Larned or L'arnard fifty dollars.

"My nephew William Henry Larned five hundred dollars.

"My nieces Elizabeth H. Coburn and Sarah Osgood each fifty dollars.

"My nephew Henry L. Hallett two hundred dollars.

"My niece Jane H. Sayles fifty dollars.

"My brother-in-law Benjamin F. Hallett fifty dollars.

"My brother-in-law William Brown fifty dollars.

"They shall also pay to some suitable person the sum of two thousand dollars as trustee for the sole use and benefit of my sister Sophia L. Clifford so that she shall receive the income thereof during her life, and so much of the principal from time to time as may be necessary tor her support, with the right of disposing of the principal or what may remain of it at her decease.

"They shall also pay to each of my nieces Lucinda M. Larned, Mary Letitia Larned, Ellen G. Larned and Anne M. Larned the annual sum of thirty dollars so long as they respectively remain unmarried—and also to my nephew Samuel Lamed the annual sum of thirty dollars for the term of ten years.

"And all the rest and residue of the said trust funds, remaining after the payment of the said sums, and reserving a sufficiency for the payment of the annuities provided for in this my will, they shall distribute to and among my heirs at law, in the proportions in which they would severally be entitled under the statute for the distribution of intestate estates.

"And whenever the payment of the said annuities shall cease so much of my said estate, as may have been reserved for their payment shall be then distributed in like manner."

The testator was survived by his wife, Celia Greene Lamed, and his only child, Katharine Celia Larned, no other person at the date of his decease holding the capacity of his heir at law or next of kin. The testator's widow subsequently married Richard W. Greene, who predeceased her, and she died intestate in 1887, leaving her daughter Katharine Celia as her sole heir at law and next of kin. Said Katharine Celia Larned married the defendant W. Maxwell Greene in 1872, and died June 29, 1917, testate and without ever having had any issue. In her will she directed that all property of hers derived from the testator be kept separate and disposed of it in part for the benefit of certain charities and in part for the benefit of various members of the Larned family, including many of the parties to this suit.

All of the persons, including the legatees of the said 17 pecuniary legacies and said Sophia L. Clifford, for whom special provision was made by the testator in case his daughter Katharine should decease without leaving living children, survived the testator, but predeceased said Katharine, Sophia L. Clifford dying intestate and without ever having attempted to exercise the power of disposing of the fund which would have been available for her were she now living.

The various gifts made by said will prior to the creation of the trusts were paid by the executors, the persons to whom were bequeathed annuities upon the death of the testator survived the testator and predeceased his daughter, and said annuities were paid in full. The payments required to be made by the trustees to the Bishop of the Diocese of Rhode Island were made, and the other provisions and directions of the will have been fully carried out, except those relating to the payments and distribution to be made after the decease of said Katharine Celia (Larned) Greene, leaving no living child or children. The trust estate, consisting principally of personal property, is now distributable.

The complainants seek instructions with respect to four questions as follows: (1) Whether or not the 17 pecuniary legacies bequeathed in and by said will in case the said Katharine Celia (Larned) Greene deceased without leaving any child or children living at the time of her decease have, by reason of the decease of the legatees during the lifetime of the said Katharine, lapsed; (2) whether the legacy in trust for the use and benefit of Sophia L. Clifford bequeathed in and by said will in case the said Katharine Celia (Larned) Greene deceased without leaving any child or children living at her decease and the said 17 pecuniary legacies, if they shall be deemed to have lapsed, have fallen into the residue of said trust estate; and, if they have not fallen into said residue, what disposition should be made of them; (3) whether the phrase "heirs at law" of said Samuel Larned in the provision in said will for the distribution of the trust estate in...