Gaboriault v. Gaboriault, 1646.

• Decision Date: 24 June 1943
• Docket Number: No. 1646.,1646.
• Citation: 32 A.2d 623
• Parties: GABORIAULT et al. v. GABORIAULT et al.
• Court: Rhode Island Supreme Court

32 A.2d 623

GABORIAULT et al.

v.GABORIAULT et al.

No. 1646.

Supreme Court of Rhode Island.

June 24, 1943.

Case Certified from Superior Court, Providence and Bristol Counties.

Bill in equity by Oliva Gaboriault and others against Ezechias Gaboriault, executor of the estate of Marie Gaboriault, and others, for construction of a will, certified by superior court to Supreme Court.

Judgment in accordance with opinion.

Woolley, Blais & Quinn, of Pawtucket, for complainants.

R. deB. LaBrosse, of Pawtucket, for respondents.

BAKER, Justice.

This is a bill in equity for the construction of a will. When the cause was ready for hearing for final decree in the superior court it was certified to this court under general laws 1938, chapter 545, § 7, for the determination of certain questions.

It appears from the bill, answer and replication that Marie Gaboriault, hereinafter referred to as the testatrix, died February 15, 1942, leaving a will dated October 24, 1936, which was duly admitted to probate on March 23, 1942, by the probate court of Central Falls. Surviving the testatrix, who was a widow, were four children and two sons of a deceased daughter. The complainants are three of the testatrix's children, two of whom are widows, the wife of one of said children, and a son of the deceased daughter and his wife. The other son of said daughter is a complainant by representation. The respondents are a son of the testatrix and his wife. He is the executor of her will. No minor's rights are involved in the cause. The testatrix left personal property which was sufficient to pay her debts and the charges of administering her estate. Also at her death she owned three parcels of real estate in Central Falls with improvements thereon, that is to say, tenement houses.

This cause was before us earlier, and the question of the status of one of the parties as a complainant having then been raised, we remanded the cause to the superior court for its determination, in the first instance, of certain questions arising in that connection. Gaboriault v. Gaboriault, R.I., 28 A.2d 744. Those questions were duly passed upon by that court. All possible views relating to the questions raised under the will to be construed having now been argued and presented to us fully, we will proceed to consider such questions without concerning ourselves further at this time with the rights of the said party complainant or with the propriety of making him such a party by representation.

The portions of the testatrix's will material to the questions raised are as follows: “Fourth: I bequeath and devise to my beloved children, Oliva Gaboriault, Rose Alma Lavallee, Eliza Audette, and Ezechias Gaboriault, and to each of them, my said children, a one-fifth part of my estate, both real and personal, wherever located, of every kind and description, now or hereafter owned by me, and not otherwise disposed of herein. Fifth: I bequeath and devise to Alphonse Ezechias Lavallee and Aime Lavallee, children of my beloved daughter, Mathilda Lavallee, deceased, the remaining one-fifth part of my estate as aforesaid, share and share alike. Sixth: I direct that pending the sale of my real estate, situated in said City of Central Falls, that my executor of my will collect the income of said real estate, and apply proceeds thereof in the payment of taxes, and such other assessments as may constitute liens thereon, and to make necessary repairs to maintain said properties in good order. Seventh: I direct that my real estate as aforesaid be reduced into lawful currency of the United States within one year from the date of my decease and that the proceeds thereof be distributed as hereinbefore directed.”

Numerous questions are propounded by the parties in the decree of certification but it is not necessary at this time to set them out in full. They fall into two groups. The first group involves a determination of the interest which the residuary devisees receive in the testatrix's real estate under her will. The second, depending upon the answer made to the first group, presents questions which relate to the proper solution of certain problems arising in case such real estate is to be sold.

The complainants contend that by the fourth and fifth clauses of the testatrix's will her real estate was devised to her residuary devisees absolutely in fee simple. The complainants call our attention to G. L. 1938, chap. 566, §14, which provides: “Whenever any real estate shall be devised without words of limitation, such devise shall be construed to pass the fee-simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will.”

They argue that no such contrary intention appears distinctly and with reasonable certainty in the testatrix's will; that there is nothing in the sixth and seventh clauses thereof which shows an intent on her part to limit or cut down the estate apparently devised by the fourth and fifth clauses; and that the seventh clause, referring to a sale of the real estate, should be construed merely as a recommendation by the testatrix and therefore precatory only, or disregarded as expressing an intention not legally permissible in view of the apparent absolute devise contained in the fourth and fifth clauses.

On the other hand, the respondents urge, among other things, that considering the whole will it is clear that the testatrix intended that her real estate should be sold and converted as provided in the seventh clause into personalty, and that her residuary devisees should receive her estate under the fourth and fifth clauses in money only and not as interests in realty.

It is well settled that the fundamental rule in the construction of wills is to ascertain and give effect to the intention of the testator in so far as possible. His general intent and purpose must be gathered from the instrument as a whole, and the various clauses thereof should, if possible, be harmonized so as to give effect to all, provided no inconsistency results.

See Frelinghuysen v. New York Life Ins. & Trust Co., 31 R.I. 150, 77 A. 98, Ann. Cas.1912B, 237; Gould v. Trenberth, 61 R.I. 5, 199 A. 696; Redding v. Rhode Island Hospital Trust Co., 67 R.I. 41, 20 A.2d 523.

Upon a careful consideration of the will now before us, we are of the opinion that there is no repugnancy between any of the provisions of that instrument, that it was the testatrix's clear intent that her real estate should be sold and converted into money, as provided in the seventh clause of her will, and that such money should then be distributed to her residuary beneficiaries under the fourth and fifth clauses. We thus construe the direction in the seventh clause that the real estate be reduced into lawful currency, especially in view of the language of the sixth clause setting out certain directions to her executor pending the sale of the real estate.

It has been held that whether or not a provision in a will amounts to an equitable conversion into personalty of real estate therein devised depends, like other questions regarding the effect of testamentary dispositions, upon the determination of what was the testator's intent. If a testator clearly intended, as disclosed by the language of his will judicially construed, that his real estate be converted out and out into personalty, then the court will give that intention effect by treating the real property as personalty from the time of his decease. Such an out-and-out direction to convert is distinguished from a mere discretionary or limited power to convert. King v. King, 13 R.I. 501. The following cases furnish instances in which the court has held that an equitable conversion of real estate into personalty has been brought...