Goffe v. Goffe

• Decision Date: 10 May 1915
• Docket Number: No. 320.,320.
• Citation: 37 R.I. 542,94 A. 2
• Parties: GOFFE et al. v. GOFFE.
• Court: Rhode Island Supreme Court

94 A. 2

37 R.I. 542

GOFFE et al.

v. GOFFE.

No. 320.

Supreme Court of Rhode Island.

May 10, 1915.

Case Certified from Superior Court, Newport County.

Suit by Walter C. Goffe and others against Elizabeth Goffe for the construction of the will of Augustus Goffe, deceased. Questions certified to the Supreme Court under the provisions of Gen. Laws 1909, c. 289, § 35. Questions answered.

Henry P. Eldredge, Jr., of Providence, for complainants. Boss & Barnefield, of Providence, for respondent.

VINCENT, J. This is a bill in equity brought by Walter C. Goffe and Kate A. Goffe, individually and as executors of the last will of Augustus Goffe, late of Newport, in the state of Rhode Island, deceased, Lulu A. G. Brown, Lawrence A. Goffe, Charlotte E. Stratford, all of the city of Newport, Kate S. Long, Elizabeth H. Long, and Charlotte Long, the last two named minor children by their mother and next friend, Kate S. Long, all of Springfield, in the commonwealth of Massachusetts, and Charles H. Stratford, of Brooklyn, in the state of New York, against Elizabeth Goffe, of said Newport, for the construction of the will of the said Augustus Goffe, and is certified to this court under the provisions of section 35 of chapter 289 of the General Laws of Rhode Island 1909.

Prior to the certification to this court a decree was entered in the superior court appointing Louis W. Dunn, Esq., as guardian ad litem on behalf of the respondent Elizabeth Goffe, a person under disability, and also as the representative of all persons not ascertained and persons not in being who may be, or may become, interested in the estate of the said Augustus Goffe, deceased, thus bringing all parties in interest before the court. The will of Augustus Goffe is holographic, and is as follows, the paragraphs being now numbered for convenience:

The Last Will and Testament of Me Augustus Goffe.

(1) I order the payment of all my just debts as soon as possible after my decease.

(2) I give my son, Walter C. Goffe, my interest in the clothing and furnishing goods business, now carried on at 177 Thames St., or wherever it may be located.

(3) I give, devise and bequeath unto my wife, Sarah A. Goffe, the use and improvements, rents and profits and income of all the rest of my estate, real and personal, now, or at the time of my decease, belonging to me, whether acquired prior or subsequent to making this will, to have and to hold the same so long as she remains my widow.

(4) My daughters, Elizabeth and Kate A., to live with her and to be provided for out of her income, and at her decease I give to Kate A. Goffe and Walter C. Goffe, executors of this will to serve without bond, and without inventory or schedule of assets in court, my estate at the corner of R. I. avenue and Broadway, in Newport, city of Newport, state of R. I., to my daughter Elizabeth, for a home so long as she lives, also the income from all personal property that I may possess. Don't fail to take the best of care of said Elizabeth [her name interlined four lines above].

(5) At the decease of said Elizabeth her interest in my estate to her brother and sisters. If Kate A. should marry, one half of her income to Walter and Elizabeth, that will make one quarter to each Elizabeth, Kate, Walter, and Charlotte E.

(6) All the reference to my daughter, Charlotto E. Stratford, in this will to be left to the judgment of my executors. I want mother to help Lottie all she can from her income.

(7) The Washington square estate, the income from that must pay insurance, taxes and expenses, the balance of the income, one half to Kate A. one quarter to Walter C. and Elizabeth, one quarter to Charlotte E. as long as she is the wife or widow of Wm. H. Stratford, and in case of her decease to her children. The same in the ease of Walter to his children. I think you can manage the estate R. I. avenue, to get quite an income from that.

(8) When my life insurance policies are paid, I expect my wife and Elizabeth to use the same to pay off the mortgage on my real estate.

(9) The foregoing provision made for my wife is in lieu of her dower in my estate, and the provision made for Elizabeth in lieu of her insurance policy.

(10) After the decease of my children, Elizabeth, Kate A., Walter C. and Charlotte E., my real estate in trust, and trustee, to be paid to take care of the property for my grandchildren, share and share alike, and after them their children.

(11) You have my permission to sell the Washington square estate, if you can add to your income by so doing, the funds to go into a trust fund.

(12) I nominate and appoint Kate A. Goffe and Walter C. Goffe executors of this will, and request that they may be exempt from giving any surety on their executors' bond in the pro-bate court, and I revoke all other wills and former wills by me made, and publish and establish this, and this only as my last will.

Witness my hand and seal at said Newport this day of March, A. D. 1899.

Augustus Goffe.

Augustus Goffe deceased on the 4th day of June, 1899. His widow, Sarah A. Goffe, deceased August 8, 1914. The four children, Walter C. Goffe, Kate A. Goffe, Elizabeth Goffe, and Charlotte E. Stratford, survived them. Walter C. Goffe has two children, Lulu A. G. Brown and Lawrence A. Goffe. Charlotte E. Stratford has four children, Kate S. Long, Charles H. Stratford, Helen Stratford, and Augustus Stratford. Kate S. Long has two children, Elizabeth H. Long and Charlotte Long. Kate A. Goffe is unmarried.

The property of the testator consisted of some personal estate and two parcels of real estate in Newport, one situated on Washington square devoted largely or wholly to business purposes, and the other at the corner of Broadway and Rhode Island avenue of a residential character. The questions which the complainants propound in and by their bill relative to the construction, validity, and legal effect of certain of the provisions, devises and trusts contained in said will are as follows:

"(1) Under the provisions of the fourth paragraph of said will do the executors take the real estate therein specified and all the personal property—exclusive of the bequest as contained in the second paragraph of said will—in trust to hold the same for the benefit of the respondent, Elizabeth Goffe, for the remainder of her life?

"(2) Under the provisions of the fifth paragraph of said will, what, if any, interest in the property, as specified in the fourth paragraph, passed to the brothers and sisters of Elizabeth Goffe, viz., Walter C. Goffe, Kate A. Goffe, and Charlotte E. Stratford, and in what proportions?

"(3) Under the provisions of the sixth paragraph of said will, what, if any, effect upon both prior and subsequent gifts and devises to the said Charlotte E. Stratford has the language, 'All reference to my daughter Charlotte E. Stratford in this will to be left to the judgment of my executors'?

"(4) Under the provisions of the seventh paragraph of said will, what are the respective interests of the beneficiaries as therein named in the Washington square estate?

"(5) Under the provisions of the eighth paragraph of said will, is the respondent, Elizabeth Goffe, charged with the duty of applying the proceeds of any policies of insurance on the life of said Augustus Goffe, payable to her or to her and any other person or persons, to the discharge of any mortgage or mortgages outstanding on any of the real estate of said Augustus Goffe at the time of his decease?

"(6) Under the provisions of the tenth paragraph of said will, is the trust estate therein attempted to be created valid: and, if only partly valid, to what extent? What, if any, effect has the language of said paragraph 10 upon any gifts or devises made in the preceding paragraphs of said will?

"(7) Under the provisions of the eleventh paragraph of said will, to whom is addressed the permission to sell the Washington square estate, provided that by so doing the income can be increased? In the event of any such sale, is the trust sought to be imposed upon the pro-coeds thereof valid; and, if so, what are its terms?"

The first question for consideration is: Do the executors take the Rhode Island avenue real estate and the residue of the personal property in trust for the life of Elizabeth Goffe?

We think that it is clear from the fourth clause of the will that it was the intent of the testator that Elizabeth, his feeble-minded daughter, should have the benefit of the Rhode Island avenue property and of the income from his personal estate. It was competent for the testator to set apart, for the advantage of this daughter, such portion or portions of his estate as he saw fit. In mentioning the personal property in this clause of the will the testator makes use of the words "and also the income from all personal property that I may possess." There are no explicit words making a bequest of the personal property to the executors for the benefit of Elizabeth, but the bequest of the income therefrom presupposes the setting apart, preservation, care, custody, and investment of the principal sum, and the collection and disbursement of the profit arising therefrom by some one in behalf and for the benefit of the cestui que trust. It has been held repeatedly, as stated by this court In the case of Greene v. Wilbur, 15 R. I. 251, 3 Atl. 4, that a devise of the income or, what is equivalent, of the cents and profits or use and occupation of land, is, in legal effect, devise of the land itself. We see no reason for any distinction in this respect between real estate and personal property.

That the court must, in construing a will, scrutinize the instrument as a whole, together with the circumstances of the case, and ascertain and give effect to the intent of the testator, is too well settled to provoke argument. We think that the testator intended that his daughter Elizabeth should have the benefit, during her (life, of the Rhode Island avenue property and the income from...