First Portland Nat. Bank v. Rodrique

• Decision Date: 09 June 1961
• Citation: 172 A.2d 107,157 Me. 277
• Court: Maine Supreme Court
• Parties: FIRST PORTLAND NATIONAL BANK as Trustee under the Will of Charles R. Cressey v. Alice F. RODRIQUE et al.

Page 107

172 A.2d 107

157 Me. 277

FIRST PORTLAND NATIONAL BANK as Trustee under the Will of Charles R. Cressey v. Alice F. RODRIQUE et al.

Supreme Judicial Court of Maine.

June 9, 1961.

Drummond & Drummond, Portland, for plaintiff.

Arthur D. Welch, Portland, Waterhouse, Spencer & Carroll, Biddeford, William B. Mahoney, Vincent L. McKusick, Portland, Daniel E. Crowley, Gerald C. Nason, Biddeford, Edward F. Dana, M. Donald Gardner, Sigrid E. Tompkins, Portland, for defendants.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, DUBORD, and SIDDALL, JJ.

DUBORD, Justice.

This cause is before us on report in accordance with the provisions of M.R.C.P. 72(a).

The complaint was instituted in the Superior Court within and for the County of Cumberland by the First Portland National Bank, which later changed its name to First National Bank of Portland, as successor trustee under the will of Charles R. Cressey, late of Portland, Maine.

The complaint seeks an interpretation and construction of the will and codicil of Charles R. Cressey, together with an inter vivos trust agreement entered into between Alice F. Cressey, widow of Charles R. Cressey and the residuary beneficiaries under the will of Charles R. Cressey. The complaint requests the Court for instructions as to present distribution of the income from the assets now held in trust and for final distribution of the assets upon the death of the surviving widow.

Charles R. Cressey executed his last will and testament, which is now before us for consideration on March 12, 1926, and he executed a codicil thereto on July 14, 1927. The changes in the will made by the codicil have no bearing upon the present issues.

Charles R. Cressey's first wife died and he subsequently married Alice Faustina O'Neil.

Charles R. Cressey was survived by his widow and four children by a prior marriage: George F. Cressey, Helen C. Stanwood, Marcia C. Passage and William R. Cressey, as well as by a foster daughter, Eleanor Roberts.

Marcia C. Passage died May 5, 1937; Helen C. Standwood died May 3, 1944; George F. Cressey died February 2, 1946; and William R. Cressey died August 12, 1958.

In this action the personal representatives of all four children of the testator are named as parties defendant. Two of the children, Marcia C. Passage and William R. Cressey, died leaving no issue surviving. Helen C. Stanwood was survived by two children, Carolyn S. Whiting and George Philip Stanwood, both of whom are named as parties defendant. George F. Cressey was survived by one child, W. Churchill Cressey, who is named as a party defendant. All three of these grandchildren of the testator themselves have children who are named as parties defendant. These great grandchildren are minors. George F. Cressey, 2nd, is the son of W. Churchill Cressey. Anne C. Whiting and Webster S. Whiting are children of Carolyn S. Whiting, and George K. C. Stanwood and Diana M. Standwood are children of George Philip Stanwood. These great grandchildren are also named as defendants and are represented by a guardian ad litem.

All unborn issue of George F. Cressey and all unborn issue of Helen C. Stanwood are named as defendants and are represented by a guardian ad litem. The foster daughter, Eleanor Roberts, who is still living was also made a defendant as well as the surviving widow, Alice F. Cressey, now Alice F. Rodrique. All defendants appeared in the action and are represented by counsel.

Prior to the marriage between Charles R. Cressey and Alice Faustina O'Neil, they entered into an ante-nuptial agreement under the provisions of which Charles R. Cressey agreed with Alice Faustina O'Neil that his estate would be bound to her for an annual payment of $1,500 during her lifetime, in lieu of her rights by descent; and the said Alice Faustina O'Neil under the provisions of said agreement waived all other rights in the estate of her intended husband. In like manner, Charles R. Cressey released his intended wife of all claims against her estate.

The issues appear to revolve around the provisions of the second and fourth paragraphs of the will of Charles R. Cressey and the inter vivos trust previously referred to, which was executed on September 3, 1936.

The second paragraph of the will of Charles R. Cressey reads as follows:

'Second: All of the shares of the capital stock of Cressey & Allen, which I may own at the time of my decease, I give and bequeath to my son George, to have and to hold in trust nevertheless, upon the following terms and conditions: To manage, control and vote the said stock as he deems best; and from the net income arising from said stock to pay annually to my wife, Alice Fostina Cressey, during the term of her natural life the sum of Fifteen Hundred Dollars ($1500), payable in quarterly installments of Three Hundred Seventy-Five ($375) each, and to pay the balance of said annual income as follows: To my son William, the income from one hundred (100) shares of said capital stock; and the income then remaining to pay in equal portions to my daughters, Helen Cressey Stanwood and Marcia Cressey, and my said sons William Cressey and George Cressey. I direct that my Trustee, if he for any reason deems, it advisable, shall have the power and authority to sell and dispose of the said shares of capital stock so held in trust by him; and the proceeds thereof shall be reinvested and held by him during the lifetime of my wife, in trust according to the terms above set forth. At the decease of my said wife if the trust shall have been in operation and effect for a period of twenty-five years, or if the stock of Cressey & Allen shall have been sold by my Trustee, it (the Trust) shall thereupon terminate and the principal of said trust fund shall be distributed as follows:--first; to my son, William one hundred (100) shares of the capital stock of said Cressey & Allen or if the same shall have been sold the equivalent money value thereof; second; the remaining portion of said trust fund shall be distributed in equal portions to my said children, Helen, Marcia, William and George, issue of a deceased child to take its parent's share by right of representation; in the event that any of my said children shall have died prior to the termination of said trust leaving to children living or issue of a deceased child, his or her portion of said trust fund on the termination of said trust, and the income from the trust during its continuance shall be divided equally among his or her brothers and sisters; but in the event that the decease of my said wife shall take place before the said trust shall have been in operation and effect for a period of twenty-five years and the principal of trust shall at her death consist of the shares of capital stock of Cressey & Allen, the said trust shall, except as hereinafter provided, continue until the said twenty-five years shall have elapsed, the amounts heretofore paid to my said wife being thereafterward divided equally among my said children, Helen, Marcia, William and George; at the expiration of the said twenty-five years the trust shall terminate, unless sooner terminated as hereinafter stipulated, and the principal of the trust fund shall be distributed to the said parties and in the manner provided for its distribution at the death of my wife the same occurring after the twenty-five year period; but in the event that my said Trustee shall after the decease of my said wife and prior to the expiration of the twenty-five year period, deems it advisable to sell and dispose of the said shares of capital stock so held in trust by him, the trust shall thereupon immediately terminate and the proceeds thereof shall be distributed to the said parties and in the said manner as hereinabove provided.'

The fourth paragraph reads as follows:

'Fourth: All the rest, residue and remainder of my property, whether real personal or mixed, and wheresoever situate, of which I may die seized and possessed, I give, devise and bequeath to my son, George, for him to distribute between his sisters, Helen and Marcia, and our former ward, Eleanor Roberts, who was brought up in our family, and his brother William and himself in such amounts and proportions as he deems just and proper. * * * My said son shall have full and complete authority to make the distribution called for in this clause, including the right and power to convey real estate by good and sufficient deed without other or further authorization. His judgment as to the method and amount of said distribution shall be final and conclusive on all parties.'

Without discussing in detail at this time the provisions of the 1936 trust agreement, in substance all of the beneficiaries under the will of Charles R. Cressey assigned to the testamentary trustee all of their interest in the estate, and particularly their interests in the assets covered under the provisions of the fourth paragraph of the will, in order to insure there might be sufficient income to pay to the surviving widow the annual amount of $1500.00 as provided in the ante-nuptial agreement.

By the second paragraph of the will, the testator created a trust, the corpus of which consisted solely of 655 shares of the capital stock of Cressey & Allen, which the testator owned at the time of his death. All 655 shares of this stock were sold in 1948 and so the corpus of the trust created under the second paragraph of the will now consists of the proceeds of the sale.

By the terms of Charles R. Cressey's will (and also under the 1936 trust), George F. Cressey, son of Charles R. Cressey, served as trustee until his death in 1946. Thereupon the First Portland National Bank, now First National Bank of Portland was appointed as successor trustee.

For purposes of administration the trust assets have been kept in three separate trusts by the First National Bank of Portland:

(1) A so-called Article Second Trust A-1, the corpus of which consists of the proceeds from the sale of 100...