Gardner v. Viall

• Decision Date: 18 June 1914
• Docket Number: No. 291.,291.
• Citation: 36 R.I. 436,90 A. 760
• Parties: GARDNER et al. v. VIALL et al.
• Court: Rhode Island Supreme Court

90 A. 760

36 R.I. 436

GARDNER et al.

v. VIALL et al.

No. 291.

Supreme Court of Rhode Island.

June 18, 1914.

Case Certified from Superior Court, Providence and Bristol Counties.

Suit in equity by Rathbone Gardner and another, executors of Jane Frances Brown, deceased, and by Henry D. Sharpe, personally, against William A. Viall and others, for construction of the will of decedent. Cause certified from superior court under Gen. Laws 1909, c. 289, § 35. Decree construing will ordered.

Gardner, Pirce & Thornley of Providence, for complainants. Green, Hincldey & Allen, Frank L. Hinckley, Frederick W. Tillinghast, and Richard S. Aldrich, all of Providence, for respondent Lucian Sharpe. Mumford, Huddy & Emerson and John H. Flanagan, all of Providence, for Rhode Island Hospital and St. Joseph's Hospital.

BAKER, J. This is a suit in equity brought by Rathbone Gardner and Henry D. Sharpe, executors of the last will and testament of Jane Frances Brown, late of the city of Providence, deceased, and by said Henry D. Sharpe, personally, against William A. Viall, Lucian Sharpe, John T. Cranshaw, and Marion Law, each of whom is a legatee under said will of certain shares of the capital stock of the Brown & Sharpe Manufacturing Company, a large number of other persons and religious and charitable corporations, each of whom receives under said will a pecuniary legacy, and Lyra B. Nickerson, the residuary legatee named in said will.

The bill of complaint sets out that said Jane Frances Brown, by her will, gave and bequeathed to the complainant, Henry D. Sharpe, 35 shares of the capital stock of the Brown & Sharpe Manufacturing Company, to the respondent Lucian Sharpe 35 shares, to the respondent John T. Cranshaw 50 shares, to the respondent William A. Viall 25 shares, and to the respondent Marion Law 25 shares of said stock; that she gave and bequeathed to the other respondents, except said Lyra Brown Nickerson, pecuniary legacies to the total amount of $1,163,000; that the assets of the estate, other than the stock of the Brown & Sharpe Manufacturing Company, have been appraised at and are of the value of about $890,000; and that such assets are insufficient to pay in full the pecuniary legacies, and that they were not materially greater at the time of the execution of said will. The bill further alleges that the testatrix owned at the time of her death, at the time of the execution of said will, and for many years prior thereto, 170 shares of the capital stock of the Brown & Sharpe Manufacturing Company, and no more, being the same number bequeathed by the will; that that company was organized in 1868 to take over and carry on the business of manufacturing tools and machinery which had been theretofore conducted by a partnership known as J. R. Brown & Sharpe; that the capital stock of the corporation upon its organization was fixed at $100,000, consisting of 1,000 shares of the par value of $100 each, and that the capitalization has never been changed; that the business and assets of the corporation have greatly increased, and that its physical plant, real estate, and machinery possess a value greatly in excess of its capitalization; that it has for many years paid dividends varying in amount in accordance with the business of the company, but all large as compared with the par value of its capital stock; that its entire capital stock has for many years been owned by Joseph Rogers Brown, the husband of the testatrix, and by Lucian Sharpe, the father of the complainant Henry D. Sharpe, and the respondent Lucian Sharpe, and their descendants or members of their families; that there have been no sales of said stock for many years, and that the same has changed hands only by reason of the death of some of its holders; that there has never been any quotable market price of the stock, and its value can only be ascertained by experts familiar with its business and earnings.

The bill contains the further allegations that the persons named in said will as legatees of said stock, other than the respondent Marion Law, are either children of said Lucian Sharpe (persons already the owners of stock in said corporation) or persons who are now or have been in the employ of said Brown & Sharpe Manufacturing Company.

The complainants ask the court to advise and instruct the executors whether the legacies of the stock of the Brown & Sharpe Manufacturing Company are specific legacies, and as such entitled to be satisfied in full, without reference to the deficiency in the remaining assets of the estate, for the payment of the pecuniary legacies, or are general legacies, and as such to abate in common with pecuniary legacies.

All of the defendants who are sui juris have answered, admitting the allegations of the bill, and the defendant trustee and the minors have answered, the latter by their guardians ad litem, submitting their rights to the court. The answer of the respondent Lucian Sharpe is a brief general answer setting up, among other additional facts, that for some time after the death of his father he acted as the confidential business adviser of the testatrix, who knew that he was a stockholder in said company, and claiming that the legacy of stock to him is specific.

The suit was referred by the superior court to a master to take and report testimony. This was done, and thereafter the cause was certified to this court, under section 35, c. 289, of the General Laws. The testimony taken supports the allegations of the bill, and also shows that the testatrix was familiar with the condition of the Brown & Sharpe Manufacturing Company, particularly with reference to the ownership of the stock; that said Lucian Sharpe and said Henry D. Sharpe had each at different times been her confidential business adviser; that said John T. Cranshaw had been employed by said company since its organization, generally as credit manager and for many years as cashier, and had constantly assisted the testatrix in her private business affairs; that William A. Viall had known testatrix for 40 years; has been employed by the company for 20 years; has been secretary thereof since 1906; and that his father was connected with the business for nearly 50 years, and was superintendent of the corporation for more than 30 years.

Jane Prances Brown, late of Providence, died July 29, 1913; her will was probated August 26, 1913, and Rathbone Gardner and Henry D. Sharpe, both aforesaid, duly qualified as executors thereunder.

The portions of the will necessary to be considered in the determination of the principal question raised are as follows:

"Second. I give and bequeath to Lucian Sharpe and Henry D. Sharpe, sons of Lucian Sharpe, deceased, to each of them, the said Lucian and Henry D., in severalty, thirty-five (35) shares of the capital stock of the Brown & Sharpe Manufacturing Company, as a token of gratitude to their father, Lucian Sharpe, for services rendered to me by him.

"Third. I give and bequeath to John T. Cranshaw, of said city of Providence, fifty (50) shares of the capital stock of said Brown & Sharpe Manufacturing Company.

"Fourth. I give and bequeath to William A. Viall, of said city of Providence, twenty-five (25) shares of the capital stock of said Brown & Sharpe Manufacturing Company.

"Fifth. I give and bequeath to Reverend Marion Law, of the city of Pawtucket, twenty-five (25) shares of the capital stock of the Brown & Sharpe Manufacturing Company."

"Twenty-ninth. I hereby declare that the legacies under this will may be paid in money or in such bonds, stocks, mortgages or other securities not hereinbefore specifically bequeathed as I may possess at the time of my death, or partly in each, such securities to be taken at such then fair value thereof as may be agreed upon between my executors and the persons or corporations entitled to such legacies respectively."

The facts admitted by all parties, namely, that the pecuniary legacies under Mrs. Brown's will amount to $1,163,000, and that the assets of the estate, other than the stock of the Brown & Sharpe Manufacturing Company and the house on Congdon street with its contents (which house and contents are admittedly specifically devised and bequeathed), have been appraised at and are of the value of about $890,000, show that such assets are insufficient to pay the expenses of administration and the pecuniary legacies given by the will. Out of this situation arises the question whether the legacies of the stock of the Brown & Sharpe Manufacturing Company are specific legacies entitled to be satisfied in full, without reference to the deficiency in the remaining assets for the payment of all the other legacies, or are general legacies, and as such liable to abate in common with all the other general legacies given by the will.

It is in relation to this question and two other matters relative to erroneous descriptions of beneficiaries under the will that the executors ask the advice and instruction of this court.

In Dean v. Rounds, 18 R. T. 436, 27 Atl. 515, the court defines a specific legacy as follows:

"A specific legacy, as the term imports, is a gift or bequest of some definite, specific thing, something which is capable of being designated and identified."

This definition is quoted with approval in Martin, Petitioner, 25 R. I. 14, 54 Atl. 594, where the court also says:

"All legacies other than that of the residuum are either general or specific. A general legacy is one which does not necessitate delivering any particular thing or paying money out of any particular portion of the estate."

It is also—

"a cardinal principle in expounding wills, announced by so many authorities that it would be tedious and is unnecessary to attempt to mention them, that the intention of the testator must be found in his expressed words." Woerner, Am. Law of Administration, § 414.

In Mahoney v. Holt, 19 R. I. 660, 36 Atl. 1, the testator bequeathed to different persons an aggregate of 2,200...