First Safe Deposit Nat. Bank of New Bedford v. Westgate

• Decision Date: 08 November 1963
• Citation: 346 Mass. 444,193 N.E.2d 683
• Parties: The FIRST SAFE DEPOSIT NATIONAL BANK OF NEW BEDFORD et al., trustees, v. Rose F. WESTGATE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 683

193 N.E.2d 683

346 Mass. 444

The FIRST SAFE DEPOSIT NATIONAL BANK OF NEW BEDFORD et al., trustees, v. Rose F. WESTGATE et al.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 8, 1963.

Decided Nov. 8, 1963.

Maurice F. Downey, New Bedford, stated the case.

Charles W. Deasy, New Bedford, for Rose F. Westgate and others.

Edward J. Harrington, Jr., New Bedford (Helen P. Brewer, New Bedford, with him) for Mary M. Sullivan.

John D. Kenney, New Bedford, for The First Safe Deposit National Bank of New Bedford and another, executors, & others.

Edward D. Hicks, New Bedford, for New Bedford Men's Mission, Inc.

Before WHITTEMORE, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

SPIEGEL, Justice.

The petitioners seek instructions regarding the distribution of certain assets which they hold as trustees under the fifth clause of the will of the testator, John V. O'Neil, late of New Bedford. The probate judge entered a final decree ordering the assets turned over to the executors of the will of John V. O'Neil, Jr., the only son of the testator; these executors and several beneficiaries under the will of the son are the appellees. The appellants are nieces and nephews of the testator who claim the trust assets and the executors of the will of the testator's deceased sister. The evidence is reported and the judge made a report of material facts.

Clause Fifth of the will, dated February 7, 1936, provides: 'All the rest and residue of my estate, I give, bequeath and devise to The Safe Deposit National Bank of New Bedford and said William S. Downey jointly, in trust, nevertheless, for the following trust purposes: * * * Second. I direct my Trustees to pay over the net income of this trust to my wife, Florence L. O'Neil, so long as she shall live or remain my widow. Third. I direct my Trustees to pay over to my son, John V. O'Neil, Jr., the following sums out of the principal of this trust: 1. The sum of Twenty-five Hundred (2,500) Dollars at the time he marries. 2. The sum of One Thousand (1,000) Dollars when he reaches the age of thirty years. 3. The sum of One Thousand (1,000) Dollars when he reaches the age of thirty-five years. 4. The sum of One Thousand (1,000) Dollars when he reaches the age of forty years. Fourth. Upon the decease or remarriage of my said wife, I direct my Trustees, subject to the aforesaid payments of principal, to pay the net income of said trust to my said son, John V. O'Neil, Jr., for and during his life-time. Fifth. At the decease of my son, and after the decease or remarriage of my said wife, I direct my Trustees to pay over to my son's issue in equal shares, the net income from said trust until the youngest of my son's issue shall reach the age of twenty-one years, when my Trustees shall pay over the whole of said trust then remaining in equal shares to said issue, free of all trusts. Sixth. If by reason of death or remarriage or lack of issue living at my son's decease, the foregoing provisions cannot be carried out, I direct my Trustees to pay over the trust estate then remaining, free of all trusts, to my next of kin, according to the laws of descent and distribution in intestate estates in this Commonwealth. Seventh. Neither the income nor the principal of the legacies and trust estate herein created shall be assignable, or anticipated, or alienated in any manner by the beneficiaries, nor are they to be subject to the control or claims of creditors or subject to any process of law. * * *'

We herewith summarize pertinent portions of the judge's findings taken from his report of material facts.

On January 6, 1937, John V. O'Neil (the testator) died. In 1946, Florence L. O'Neil, the testator's widow, died. Later that year, John V. O'Neil, Jr., married Anna G. Ring, who is an appellee in the present case. In 1947, the testator's sister, Elizabeth Clark, died. On December 20, 1961, John V. O'Neil, Jr., died, testate, without leaving issue. It is agreed that pursuant to the sixth section of the fifth clause in the testator's will the time has arrived for final distribution of the principal of the trust created under that clause.

The paramount issue before us is whether the term 'next of kin,' as used in the sixth section, refers to those who had this status on January 6, 1937, the date of the testator's death, or to those who were his next of kin on December 20, 1961, the date on which his son died. The appellees argue, and the Probate Court ruled, that the 1937 date is applicable; the appellants contend that under a proper construction of the will the next of kin are to be determined as of December 20, 1961.

In Childs v. Russell, 11 Metc. 16, 23, Chief Justice Shaw said: 'We consider that when a bequest is made to one or more for life, and remainder to the testator's heirs, or next of kin, or relations, or such persons as would take his estate by the rules of law if he had died intestate, the bequest is to those who are such heirs or next of kin at the time of his decease, unless there are words indicating a clear intention that it shall go to those who may be his relations or next of kin at the time of the happening of the contingency upon which the estate is to be distributed.' Although in that case so much of the court's opinion as applied to the term 'next of kin' was dictum, the same rule was applied to the term 'nearest of kin' in Keniston v. Mayhew, 169 Mass. 166, 169, 47 N.E. 612, and has been restated often enough to be regarded as a settled rule of construction in this Commonwealth. Whall v. Converse, 146 Mass. 345, 348-349, 15 N.E. 660. Tyler v. City Bank Farmers Trust Co., 314 Mass. 528, 531, 50 N.E.2d 778. Perkins v. New England Trust Co., 344 Mass. 287, 291, 182 N.E.2d 308. Old Colony Trust Co. v. Stephens, Mass., 190 N.E.2d 110. ^a

A rule of construction, however, should not be confused with a rule of substantive law. Agricultural Natl. Bank of Pittsfield v. Miller, 316 Mass. 288, 291, 55 N.E.2d 442. We have repeatedly said that canons for the interpretation of wills are to be considered only as aids for determining testamentary intent and should not be used to defeat that intent. Ware v. Minot, 202 Mass. 512, 516, 88 N.E. 846. Worcester County Trust Co. v. Marble, 316 Mass. 294, 297, 55 N.E.2d 446. McKay v. Audubon Soc. Inc., 318 Mass. 482, 486, 62 N.E.2d 117. The appellants contend that there is other language in the testator's will which tends to prove that he intended the term 'next of kin' as used in the sixth section to refer to those who legally would occupy this status on the death of his son and not on his own death.

The appellants' strongest argument is that it is unlikely that the testator intended a contingent remainder to vest in his son (assuming his son to have been the 'next of kin' in 1937) upon his son's death, where the express gifts in the will to the son were only a life interest in the trust and nominal payments of trust principal upon the happening of certain events during the son's lifetime. We see nothing unlikely in such a result. Perhaps a similar result would be more often accomplished by giving the life beneficiary a contingent power of appointment over the remainder, or a more restricted result accomplished by giving a contingent remainder to the life beneficiary's heirs. See Old Colony Trust Co. v. Richardson, 297 Mass. 147, 148-149, 7 N.E.2d 432, 121 A.L.R. 1218. Cf. Bailey v. Smith, 222 Mass. 600, 602-603, 111 N.E. 684. Nevertheless, we have held in several cases that a gift of a life interest to an heir with a remainder in the testator's heirs does not prove that the heirs were to be determined at the time of the life beneficiary's death. Keating v. Smith, 5 Cush. 232, 235-236. Old Colony Trust Co. v. Clarke, 291 Mass. 17, 21, 195 N.E. 758. Gilman v. Congregational Home Missionary Soc., 276 Mass. 580, 584, 177 N.E. 621. We observe that the testator's will was drawn after these cases had been decided.

In another line of cases, however, we have held that where a testator gives a life interest to those who would have been his heirs in intestacy, and a contingent remainder to his 'heirs,' these heirs are to be determined at the end of the life interest. Fargo v. Miller, 150 Mass. 225, 229-231, 22 N.E. 1003, 5 L.R.A. 690. Welch v. Brimmer, 169 Mass. 204, 211, 47 N.E. 699. Heard v. Read, 169 Mass. 216, 222, 47 N.E. 778. Brown v. Wright, 194 Mass. 540, 545, 80 N.E. 612. Welch v. Howard, 227 Mass. 242, 246, 116 N.E. 492. Boston Safe Deposit & Trust Co. v. Waite, 278 Mass. 244, 247, 179 N.E. 624. In most of these cases, the court found some language in the testamentary instrument or some other facts to take the case out of the general rule that heirs of the testator are to be determined at the time of his death.

In Fargo v. Miller, supra, 150 Mass. 230, 22 N.E. 1005, the court seemed to be of the opinion that the absence of any reference to statutes of descent gave the word 'heirs' a less strict meaning. In Welch v. Brimmer, supra, 169 Mass. 208, 213, 47 N.E. 699, 700, the word 'then,' followed by other language, was significant. The proviso there in question read: 'Provided, however, that in case my said son shall die having no issue him surviving, or such issue shall decease during minority, then, and in either of such cases, my will is that my sister, Eliza Oliver, shall have and take the said moiety of my estate * * *; and if the said Eliza O. shall not then be living, I give said estate, with its accumulations, to the person or persons who shall be my heir or heirs at law.' As the court construed the proviso, the word 'then' modified not only 'shall not be living' but also the verb 'shall be' in the syntactical clause 'who shall be my heir or heirs at law.' In Heard v. Read, supra, 169 Mass. 224, 47 N.E. 782, a case analogous to Welch v. Brimmer, supra, the court did not apply the general rule. The court reasoned that the contingent remainder was to the testator's 'heirs' whereas his heir at law would have been...