Gould v. Trenberth
| Decision Date | 06 November 1937 |
| Docket Number | No. 1336.,1336. |
| Citation | 194 A. 736 |
| Parties | GOULD v. TRENBERTH et al. |
| Court | Rhode Island Supreme Court |
Bill in equity by Elizabeth P. Rees Gould against Eleaet E. T. B. Trenberth, executrix, and others. Certified from the Superior Court after a hearing. On motion to dismiss the certification.
Motion denied.
Le Roy G. Pilling, of Providence, for complainant. Grim & Littlefield, of Providence, for respondent.
This is a bill in equity brought by the sister and sole heir at law of Jennie H. Taber, deceased, for the construction of the latter's will. In the superior court the respondent's demurrer to the bill was overruled and the case was heard on bill, answer, and evidence. When it was ready for final decree, the justice certified the case to this court under General Laws 1923, c. 339, § 35, for determination of certain questions of law involving the construction of the will. It is before us at this time merely on the respondent's motion to dismiss the certification.
The bill contains six paragraphs, of which the first, second, and third substantially allege facts relating to the death of Jennie H. Taber on February 26, 1935, the existence and probate of her last will dated July 13, 1932, and the appointment and qualification of the respondent, who is a sister-in-law of the testatrix, as the executrix of the latter's will. The fourth paragraph alleges facts apparently to permit introduction of evidence of statements and conduct which tended to contradict the construction of the will contended for by respondent. The fifth paragraph sets out facts to permit evidence of circumstances which might assist the court in construing the will in the event that the intent of the testatrix becomes unascertainable from the will itself. The sixth paragraph prays for a construction of the second paragraph of the will with particular reference to four certain questions of law therein set forth.
The second paragraph of the will, the last portion of which gives rise to the necessity for a construction of the will, reads as follows: "Second: All the rest, residue and remainder of my estate of whatsoever name or nature, be the same real, personal or mixed or however otherwise described and wherever located to which I may be entitled either at law or in equity, I give, bequeath and devise to my sister-in-law, Eleaet E. Taber Beaman, with the understanding that if my sister, Elizabeth P. Rees Gould, shall survive me that my said sister-in-law shall care for my said sister as long as she shall live."
The respondent, in support of her motion to dismiss the certification, contends that the record does not state any specified question for determination by this court; that the bill is not brought solely for the construction of a will as required by General Laws 1923, c. 339; that the decree was premature; and that the record shows that this court is without jurisdiction to hear and determine the case.
In our opinion, however, none of these contentions can be sustained on the record before us. The respondent first contends that the bill does not state any specific question for determination by this court. All of the questions set forth in the prayer may not be stated in the best possible form for certification under the statute, and it would be better practice, as urged by the respondent, to state such questions of law, as far as practicable, in a form that would submit to an affirmative or negative answer. Nevertheless, we think that at least two of them, namely, 1 and 3, when considered together with the rest of the bill, reasonably suggest pertinent questions of law involving the construction of the second paragraph of the will of Jennie H. Taber.
A fair reading of the bill of complaint in our opinion justifies the conclusion that it is primarily a bill for the construction of a will. In all its paragraphs, with the possible exception of the fourth, the allegations of the bill deal with facts ordinarily necessary or proper to state a cause for the construction of this will.
If the fourth paragraph may be considered as containing allegations in support of any relief other than the purported construction of the will, it is at most merely incidental or immaterial. The bill contains no specific prayer for the removal of a cloud on the title, as is apparently argued by the respondent. In Horton v. Horton, 46 R.I. 492, 129 A. 499, the bill of complaint, as here, contained proper allegations and a prayer for the construction of the will, but it also had a specific prayer for the removal of the cloud on the title which is not present in the bill in the instant case. In that case, notwithstanding such specific prayer for relief, the court said, 46 R.I. 492, at page 495, 129 A. 499, 500: "We think the bill is one primarily for the construction of a will and not to remove a cloud on a title, and the order of certification shows that the superior court so regarded the cause." A fortiori where the bill, as here,...
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Gould v. Trenberth
...on the ground that it was not in accordance with the above section. This motion was denied by this court after a hearing. Gould v. Trenberth, Ex'x, R.I., 194 A. 736. The proper rule to be applied in the construction of a will is well stated in Rhode Island Hospital Trust Co. v. Egan, 52 R.I......
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Town Of Bristol v. Nolan, 1740.
...for determination by this court. United States Trust Co. v. Tax Assessors of City of Newport, 47 R.I. 420, 133 A. 802; Gould v. Trenberth, 59 R.I. 220, 194 A. 736. Under section 6 certain questions of law of doubt and importance, when properly brought upon the record, may be certified. But ......
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Redding v. R.I. Hosp. Trust Co.
...in this opinion. See Bliven v. Borden, 56 R.I. 283, 185 A. 239; Industrial Trust Co. v. Clarke, 59 R.I. 152, 194 A. 603; Gould v. Trenberth, 59 R.I. 220, 194 A. 736; Pennsylvania Co. v. Contributors to Pennsylvania Hospital, R.I., 9 A.2d 269; Smith v. City of Providence, R.I, 9 A.2d In cons......
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Ortman v. Streeter
...and consider the cause as one solely for the construction of a will. Horton v. Horton, 46 R. I. 492, 129 A. 499. See Gould v. Trenberth, 59 R.I. 220, 194 A. 736. The record before us shows the following facts. The complainants are twenty-eight heirs at law of Jeannette W. M. Smith. The resp......