Fiduciary Trust Co. v. Silsbee

• Decision Date: 18 January 1963
• Citation: 159 Me. 6,187 A.2d 396
• Parties: FIDUCIARY TRUST CO., Trustee u/w/o Sarah G. Silsbee v. Gerald Saltonstall SILSBEE et al.
• Court: Maine Supreme Court

Page 396

187 A.2d 396

159 Me. 6

FIDUCIARY TRUST CO., Trustee u/w/o Sarah G. Silsbee v. Gerald Saltonstall SILSBEE et al.

Supreme Judicial Court of Maine.

Jan. 18, 1963.

Pierce, Atwood, Scribner, Allen & McKusick, by Sigrid E. Thompkins and Fred C. Scribner, Jr., Portland, for plaintiff.

Johnson, Clapp, Ives & King, Boston, Mass., Drummond & Drummond, by Paul A. Wescott, Verrill, Dana, Walker, Philbrick & Whitehouse, by John A. Mitchell, Linnell, Perkins, Thompson, Hinckley & Thaxter, by Franklin G. Hinckley, Portland, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ. (DUBORD, J., resigned before rendition of decision).

SULLIVAN, Justice.

Action for the construction of a testamentary trust and for the authoritative determination of the mode of executing that trust. R.S.1954, c. 107, § 4, subd. X, as amended. The case comes to this Court upon report. Rules 72, M.R.C.P., 155 Me. 573.

Sarah G. Silsbee, the testatrix and a resident of Maine, died on June 8, 1933. She was survived by a son, George S. Silsbee, by a daughter, Elizabeth Silsbee Law, and by a sister, Marian Gray Lewis. The son became deceased on August 21, 1961 and left no natural children or descendants by blood. The daughter and the sister aged 98 are living and are defendants in this action.

Sarah G. Silsbee made her will on October 5, 1928 and thereafter executed 3 codicils dated respectively June 3, 1930, June 8, 1932 and April 11, 1933. The will and codicils were proved and allowed in the Waldo County Probate Court on July 25, 1933. A controversy has evolved concerning the rational and just interpretation of specific terms and provisions contained in the residual disposition of the estate. The relevant text is worded as follows: (partition of clauses for visual purposes, ours.)

'All the residue of my property of every kind,

* * *

* * *

'I give and appoint to the trustees hereinafter named in trust

'to divide the same into as many shares as there shall be children of mine then living,

'counting for one share the issue if any then living of each child of mine then deceased, or

'if at my death one of my children shall have died leaving no issue then living

'to set apart the whole fund for the other of my children if living or

'if not

'for his or her issue if any then living.

'Each share so set apart for the issue of a child of mine

'shall be paid over to such issue by right of representation free of trust.

'Each share so set apart for a child of mine

'shall be held in trust to pay the income thereof to such child during his or her life,

'paying the same into his or her own hand or upon his or her own separate order or receipt to be drawn always from time to time as such income shall become payable and never by anticipation or by way of assignment and in no case subject to the interference, claim or control of any creditor or other person.

'Upon the death of each child of mine for whom a share has been so set apart and held,

'such share shall be paid over free of trust to the issue of such child then living by right of representation,

'or if there is no such issue then living,

'such share shall be added to the trust fund if any then held for the other of my children if then living

'and if not

'shall be paid over free of trust to the issue then living by right of representation of such other child of mine,

'but if no issue of mine is then living

'such share shall continue to be held in trust during the life of the survivor of my brothers and sisters and the income thereof paid in equal shares to all my brothers and sisters living from time to time

'provided that the issue living from time to time of each brother or sister of mine then deceased shall take by right of representation the share such deceased brother or sister would have taken if living.

'Upon the death of the survivor of my brothers and sisters or

'upon the subsequent death of the survivor of my two children 'if there is no issue of either of them then living,

'the fund shall be paid over free of trust to my nephews and nieces then living taking per capita and not per stirpes

'provided that the issue then living of each nephew and niece of mine then deceased shall take by right of representation the share such nephew or niece would have taken if then living.'

Plaintiff is the sole successor trustee of the trust created by the residuary provisions just quoted.

On November 12, 1931, prior to his mother's death, George S. Silsbee, son of the testatrix, married. On May 16, 1933, subsequent to his mother's 3rd codicil of April 11, 1933 and before her death on June 8, 1933, George S. Silsbee in California legally adopted as his son, Gerald Warren Mead, natural son of George S. Silsbee's wife and born to her on August 24, 1922 during a former marriage. At the time of the adoption Gerald Warren Mead's natural father was alive and consented to the adoption. George S. Silsbee and his wife in the adoption proceedings executed an agreement that Gerald Warren Mead would be

'* * * adopted and treated in all respects as their own issue should be treated * * *'

The adoption decree read in pertinent part:

'* * * that the said GERALD WARREN MEAD be adopted by the petitioners herein and that the said child henceforth be in the custody and regarded and treated, in all respects, as the child of George S. Silsbee and Ruth P. Silsbee, and hereafter bear the name of GERALD SALTONSTALL SILSBEE.'

At the time of the execution of the will and codicils of Sarah G. Silsbee, at the date of her death and when Gerald Warren Mead was adopted by George S. Silsbee the adoption statute of Maine was identically, P.L.1917, c. 245, R.S.1930, c. 80, § 38.

The adopted Gerald Saltonstall Silsbee and his two children are defendants in this case.

Many defendants are nieces and nephews of the testatrix or descendants of nieces and nephews.

Anne Gilmour Grant and her children are defendants. Anne Gilmour Grant is an adopted daughter of Alice Fay Gilmour, a niece of the testatrix and also a defendant here.

Following the death of the testatrix in 1933 Elizabeth Silsbee Law and George S. Silsbee until his death in 1961, both equally enjoyed the income from the trust.

This proceeding seeks to ascertain if one-half of the principal of the trust formerly allocated to supply life income to George S. Silsbee shall be added to the other one-half of the corpus and the whole res be held for the life income benefit of Elizabeth Silsbee Law or whether the one-half share of the principal formerly dedicated for the lifetime usufruct of George S. Silsbee must be paid over free of trust to adopted Gerald Saltonstall Silsbee as the 'issue' of George S. Silsbee.

This Court is further asked to whom the principal devoted to the lifetime income benefit of Elizabeth Silsbee Law who was born in 1893 and has no children or descendants, shall be distributed upon her demise.

To restate variantly the first inquiry: Is Gerald Saltonstall Silsbee within the purport of the will and codicils of the testatrix, Sarah G. Silsbee, the 'issue' of his adopter, George S. Silsbee, and therefore entitled to take one-half of the trust res?

The resolution of such a question whenever possible is to be attained by effectuating the lawful intention of the testatrix if she has expressed one in the language of her testament construed as an entirety and as of the time of testamentary execution. Gorham v. Chadwick, 135 Me. 479, 482, 200 A. 500, 117 A.L.R. 805; Cassidy v. Murray, 144 Me. 326, 328, 68 A.2d 390; Barnard v. Linekin, 151 Me. 283, 286, 118 A.2d 327; New England Trust Co. v. Sanger, 151 Me. 295, 301, 302, 118 A.2d 760; Fiduciary Trust Co. v. Brown, 152 Me. 360, 368, 131 A.2d 191.

In Wilder v. Butler, 116 Me. 389, 391, 102 A. 110, 111, L.R.A.1918B, 119, this Court said:

'* * * The right of inheritance by the adopted child is a matter of statutory creation; the taking under a deed or a will depends upon the intention of the grantor or testator, as revealed by the instrument itself construed in the light of the surrounding facts and conditions. Where the grantor or testator is the adopting parent it is reasonable to presume that the adopted child was within the intended bounty of such grantor or testator. But where he is a stranger to the adoption such presumption does not prevail. * * *'

The following excerpt from the text of the testamentary trust is the subject matter and occasion of our primary question:

'* * * Upon the death of each child of mine for whom a share has been so set apart and held, such share shall be paid over free of trust to the issue of such child then living by right of representation, or

if there is no such issue living, such share shall be added to the trust fund if any then held for the other of my children if then living * * *' (italics supplied)

The decisive term 'issue' as utilized by the testatrix--settlor has a prima facie or technical meaning of natural child or descendant by blood. Woodcock's Appeal, 103 Me. 214, 217, 68 A. 821; Fiduciary Trust Co. v. Brown, 152 Me. 360, 372, 131 A.2d 191. But, as it was said in Gannett v. Old Colony Trust Co., 155 Me. 248, 249, 153 A.2d 122, 123:

'The word 'issue' does not have such a fixed and limited meaning that it cannot vary with the intention of the testator who uses it. * * *'

In Woodcock's Appeal, supra, 103 Me. 217, 68 A. 822, it was held:

'When in a will provision is made for 'a child or children' of some other person than the testator, an adopted child is not included unless other language in the will makes it clear that...