Gannett v. Old Colony Trust Co.
| Citation | 153 A.2d 122,155 Me. 248 |
| Parties | John H. GANNETT et al. v. OLD COLONY TRUST CO., Trustee, et al. |
| Decision Date | 23 June 1959 |
| Court | Supreme Judicial Court of Maine (US) |
Sanborn & Sanborn, Augusta, for plaintiff.
Bingham, Dana & Gould, Boston, Mass., John E. Willey, Portland, Brooks Brown, Jr., Augusta, for defendants.
Before WILLIAMSON, C. J., and WEBBER, TAPLEY, DUBORD and SIDDALL, JJ.
On report. Plaintiffs seek interpretation of the will of the late Guy P. Gannett, and specifically that portion of the will which reads as follows:
'The trust shall end upon the death of the last of Jean, John and Madeleine Jean and the trustees shall pay over the principal of the trust at that time by right of representation to my issue then living.' (Emphasis ours.)
The problem arises from the fact that whereas Jean is the natural daughter and Madeleine Jean the natural granddaughter of the testator, John is his adopted son. Moreover, John has children now living and who were living when the testator executed his will. If issue of John survive the stated contingency, will they qualify as takers (by right of representation) in the capacity of 'issue' of the testator? We answer in the affirmative.
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. Within the four corners of the will itself may be found substantial indication that when the testator employed the phrase 'my issue' he intended to include the issue of his adopted son. He established three equal life estates, one of which was for the benefit of 'my son, John H. Gannett.' The testator's failure to make any distinction between his adopted child and his natural children is significant. Moreover, in event of John's death, his issue were to take his share of the income for the duration of the trust which might easily continue for many years thereafter. It would appear most unlikely that the testator would thus provide income benefits for the issue of his adopted child which might be long extended, but in the next breath would cut them off completely from any share in the corpus. Any apparent inconsistency at once disappears if we but recognize that the testator thought of John as though he were a natural son and of John's issue then living as though they were the natural grandchildren of the testator. That such was his intention is fully confirmed by evidence of the circumstances existing at the time the will was made. The will was prepared for the testator by a competent attorney who was, however, unfamiliar with the testator's family circumstances and totally unaware of John's status as an adopted child. The testator's concern as expressed to his scrivener was for his 'grandchildren' in which category he obviously included John's children toward whom he felt as great a love and affection as he entertained for those of his blood. The words 'my issue' were selected by the scrivener in ignorance of any problem of adoption. They were adopted by the testator as words which would effectuate his intention to place...
To continue reading
Request your trial
-
In re George Parsons 1907 Trust
...term "issue" is ambiguous and that its meaning varies according to the intention of the settlor who uses it. Gannett v. Old Colony Tr. Co. , 155 Me. 248, 249, 153 A.2d 122 (1959) ; Fiduciary Tr. Co. v. Brown , 152 Me. 360, 371–72, 131 A.2d 191 (1957) ; Union Safe Deposit & Tr. Co. v. Dudley......
-
Harmon v. Harmon
...important evidence would be denied the court. See Ziehl v. Maine Nat'l Bank, Me., 383 A.2d 1364, 1368 (1978); Gannett v. Old Colony Trust Co., 155 Me. 248, 251, 153 A.2d 122 (1959). It should be noted that the claim of the Plaintiff son is to a loss of his expectancy, not to a loss of the a......
-
First Portland Nat. Bank v. Rodrique
...authority to act on the prayer of this bill.' The latest decisions of this court upon the point in issue are Gannett et al. v. Old Colony Trust Co. et al., 155 Me. 248, 153 A.2d 122, and Swasey et al. v. Chapman et al., 155 Me. 408, 156 A.2d In both of these cases, it was the conclusion of ......
-
Randlett v. Randlett
...result if the court were compelled to act years hence in an evidentiary vacuum.' " Id. at 1368, Quoting Gannett v. Old Colony Trust Co., 155 Me. 248, 251, 153 A.2d 122, 124 (1959). These same considerations again lead us to conclude that declaratory relief ought be made The entry is: Appeal......