Fleet Nat. Bank v. Miglietta

• Citation: 602 A.2d 544
• Parties: FLEET NATIONAL BANK v. John D. MIGLIETTA et al. 91-42-Appeal.
• Decision Date: 27 January 1992
• Court: United States State Supreme Court of Rhode Island

Page 544

602 A.2d 544

FLEET NATIONAL BANK v. John D. MIGLIETTA et al.

91-42-Appeal.

Supreme Court of Rhode Island.

Jan. 27, 1992.

Barry Hittner, Richard M. Borod, Edwards & Angell, Providence, for plaintiff.

Richard W. Zacks, Winograd & Shine, Ellen Benson, Winograd, Shine & Zacks, David Riedel, Andrew B. Prescott, Welling Thomas, Tillinghast, Collins & Graham, Lauren Jones, Jones Associates, Steven I. Rosenbaum, Hodosh, Spinella & Angelone, Providence, Kenneth Pearson, Gluss, Pearson, Scherago & Crannage, Port Washington, N.Y., Philip Brawner, Howard, Brawner & Stone, Miami, Fla., Robert C. Agee, Bronxville, N.Y., Joseph L. Kay, Albany, N.Y., Jay Levine, Bigham, Englar, Jones & Houston, New York City, David F. Fox,

Middletown, Samuel A. Olevson, Pucci & Goldin, Inc., Providence, Mark A. McSally, David H. Ferrara, Taft & McSally, Cranston, Gayle F. Tarzwell, Wakefield, Elizabeth Peterson Santilli, Andrew H. David, Jr., Davis, Jenckes, Kilmarx & Swan, Providence, Mark B. Heffner, Breslin, Sweeney & Earle, Warwick, for defendants

OPINION

SHEA, Justice.

This matter comes before the Supreme Court after a Superior Court justice granted a joint motion for certification filed pursuant to Rule 72(a) of the Superior Court Rules of Civil Procedure. This action arose out of a request for construction of the will of Samuel Pomeroy Colt filed in the Superior Court by the plaintiff as trustee under the will. We are presented with two issues on this appeal. First, we are asked to decide whether the principal of a special trust (hereafter the 27th-clause special trust) created pursuant to the will of Samuel Pomeroy Colt should now be distributed. Second, we are asked to decide if the estate is responsible for attorney fees and, if so, to which trust the fees should be charged. We answer both questions in the affirmative.

The plaintiff in this case is the executor of and the trustee under the will of the late Samuel Pomeroy Colt. The defendants in the action are Irving Trust Company, a New York banking corporation with a principal place of business in New York, New York, in its capacity as administrator c.t.a. of the estate of Russell G. Colt; the estate of Roswell C. Colt; the estate of LeBaron B. Colt; John D. Miglietta of New York, New York; Elizabeth C. Stansfield of Las Vegas, Nevada; Samuel C. Wilson of Olympia, Washington; Dorothy W. Payne of San Diego, California; Rodney C. Wilson of Modesto, California; Melba C. Delmouzos of Miami, Florida; Merika Irene Delmouzos Wostenholme of Boca Raton, Florida; Samuel Peshmalyn Colt of Cambridge, Massachusetts; Julia Wedgewood Colt of Cambridge, Massachusetts; S. Reed Anthony of Glen Head, Long Island, New York; the estate of LeBaron C. Anthony; the estate of Barbara Barrows Nightingale; the estate of Edwin A. Barrows, Jr; and the estate of Theodora Barrows McCue.

The facts of this case, which were established in an agreed statement of facts pursuant to G.L.1956 (1985 Reenactment) § 9-24-25, are interesting and important to our conclusions. The Colt Estate is one with which this court has become familiar over the years. Samuel Pomeroy Colt died on August 13, 1921. He was survived by his sons, Russell G. Colt and Roswell C. Colt, and his brother LeBaron B. Colt. ¹ In his will the testator appointed the Industrial Trust Company a.k.a. Fleet National Bank (plaintiff) as executor and trustee under the will. The plaintiff has acted as trustee of the twenty-seventh and twenty-eighth-clause trusts since its inception. Since 1921 we have been called upon to interpret the language of Samuel Pomeroy Colt's will on no less than ten previous occasions. ²

The twenty-seventh clause (hereinafter the 27th clause) of the testator's will creates a trust consisting of the testator's real estate in Bristol, Rhode Island. The testator's son Russell was given the right to occupy Homestead Estate and his son Roswell was given the right to occupy Colt Farm. These two parcels of real estate were to be held in trust "for and during the natural lives of said children and grandchildren until all but one of them shall have deceased * * *." At the time that only one grandchild remains, the will instructs that "my Trustee shall convey, transfer and deliver to such survivor, discharged of all trust, my said Homestead Estate and Farm * * *." The 27th clause also orders that the trustee hold in trust the rest of the testator's land in Bristol and that any "net income, rents and profits derived from said other real estate, [apply] * * * as may be necessary for the expenses attending the care, management and custody of my Homestead Estate and my said Farm * * *." Furthermore the 27th clause creates a special trust consisting of one half of the testator's residuary estate. This special trust was created "to apply the net income thereof or so much as may be necessary toward the expenses of the care, management and custody of my said Homestead Estate and said Farm * * *."

The twenty-eighth clause (hereafter the 28th clause) of the testator's will creates a trust consisting of the remaining one half of the testator's residuary estate. This clause instructs that this trust should be divided into six parts and distributed as follows: one-sixth to Russell Colt, one-sixth to Roswell Colt, and one-sixth to LeBaron Colt. The three-sixths remaining was to be held in trust (hereafter the 28th-clause residuary trust) with income distributed to Russell, Roswell, and LeBaron on at least a semiannual basis. The will also provides that after the deaths of Russell, Roswell, and LeBaron the trustee "shall pay to the surviving child or children of such deceased son or brother for and during the term of his, her or their natural life or lives the share of said net income to which such deceased son or brother would be entitled if living." Finally the 28th clause provides that after the testator's grandchildren have died, the children of the grandchildren will take a per stirpes proportion of the estate discharged of all trust.

The present case comes before this court owing to the death of Samuel P. Colt, the son of Russell Colt. Samuel P. Colt's death is legally significant because of the holding of this court in Colt v. Industrial Trust Co., 50 R.I. 242, 146 A. 628 (1929). In that case this court interpreted the word "grandchild" in the 27th clause of the will to mean grandchildren who were living at the time of the testator's death. Id. at 245, 146 A. at 630. Defining the term "grandchild" was important because, as noted earlier, the 27th clause trust consisting of Homestead Estate and Colt Farm ends when all but one of the grandchildren have died. When one grandchild survives, that grandchild inherits Homestead Estate and Colt Farm. The death of Samuel P. Colt, the son of Russell Colt, leaves Elizabeth Stansfield as the only remaining grandchild who was alive at the time of the death of the testator. Thus, Elizabeth Stansfield inherited Homestead Estate and Colt Farm. See Fleet National Bank v. Colt, 529 A.2d 122, 131 (R.I.1987).

The only remaining asset of the 27th clause is the special trust that was created to help pay the expenses of Homestead Estate and Colt Farm. Since Homestead Estate and Colt Farm have been dispersed according to the command of the 27th clause, the special trust no longer serves its purpose. The plaintiff in this appeal requests instructions on how the principal of the special trust should be distributed.

The last sentence of the 27th clause of the will provides:

"And upon the termination of the trust hereinbefore expressed concerning my real estate in said Town of Bristol, said one-half of my residuary estate shall fall in and become a part of the other half of my residuary estate to be divided and distributed or held as provided in clause Twenty-eight of this Will."

This clause is ambiguous and open to various interpretations. In reviewing this clause, "our initial and primary obligation is to ascertain, if possible, the dispositive intent expressed in the will in its entirety and in the light of the circumstances attendant on its formulation." Strauss v. van Beuren, 119 R.I. 376, 378, 378 A.2d 1057, 1058 (1977).

We have been presented with numerous briefs that argue for the interests of the various defendants. From these briefs, we discern three plausible interpretations for the last sentence of the 27th clause. One interpretation is that the principal of the 27th-clause special trust falls into and becomes a part of the 28th-clause residuary trust. The result of this interpretation would be that the entire principal of the 27th-clause special trust would be divided between Elizabeth Stansfield and Melba Delmouzos, daughters of Roswell Colt, who are the only surviving grandchildren of Samuel Pomeroy Colt among those who were living at the time of his death.

A second interpretation is that the principal of the 27th-clause special trust should fall into and become part of the 28th-clause residuary trust and be distributed according to the rule established in Industrial Trust Co. v. Flynn, 74 R.I. 396, 60 A.2d 851 (1948). The result of this argument would be to divide the principal of the 27th-clause special trust into three parts that would then be distributed to the children or grandchildren of Russell, Roswell, and LeBaron Colt.

The final interpretation advanced is that the principal of the 27th-clause special trust fund should be distributed according to the instructions of the 28th clause. The effect of this interpretation would be to divide one half of the principal of the 27th-clause special trust among the estates of Russell, Roswell, and LeBaron Colt. Since Russell, Roswell, and LeBaron are all deceased, this amount would be distributed to their heirs as provided for in Flynn. The remaining one half of the principal of the 27th-clause special trust would be distributed according to the instructions for distribution of the residuary trust contained in the 28th clause. We are...