Gould v. Trenberth

• Decision Date: 31 May 1938
• Docket Number: No. 1336.,1336.
• Citation: 199 A. 696
• Parties: GOULD v. TRENBERTH.
• Court: Rhode Island Supreme Court

199 A. 696

GOULD

v. TRENBERTH.

No. 1336.

Supreme Court of Rhode Island.

May 31, 1938.

Certified from Superior Court, Providence and Bristol Counties.

Suit in equity for the construction of the will of Jennie H. Taber, deceased, by Elizabeth P. Rees Gould against Eleaet E. T. B. Trenberth, executrix of Jennie H. Taber, deceased. When the cause was ready for hearing for final decree, it was certified to the Supreme Court for determination.

Decree ordered in accordance with opinion.

LeRoy G. Pilling, of Providence, for complainant. Grim & Littlefield and Benjamin W. Grim, all of Providence, for respondents.

MOSS, Justice.

This is a suit in equity for the construction of the will of Jennie H. Taber, deceased. The complainant is her sister and her sole heir and next of kin. The suit is brought against Mrs. Trenberth not only as executrix of the will but also individually, she being the sister of the deceased husband of the testatrix and devisee and legatee under the will. A certified copy of the will and of the decree of the probate court admitting it to probate was annexed to the bill of complaint.

After a demurrer by the respondent to the bill had been filed and overruled in the superior court, the respondent filed an answer, in which she admitted the allegations of the first paragraph of the bill, setting forth in substance the facts above stated, the execution of the will on July 13, 1932, the death of the testatrix on February 26, 1935, and the probating of the will. In this answer the respondent denied or put the complainant upon proof of the other allegations of the bill. Then, at a hearing in the superior court, evidence was presented by both parties, to assist in the interpretation of the language of the will as to which they differed. When the cause was ready for hearing for final decree, it was certified to the supreme court for determination, under general laws 1923, chapter 339, sec. 35.

In this court the respondent filed a motion to dismiss the certification, 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. 384, 387, 161 A. 124, 125, as follows: "The fundamental rule of construction of a will is that the intention of the testator is to be made effective if it is not in violation of law. To ascertain this intention, the testator's language should not only receive a sensible interpretation, but should be interpreted with reference to the whole will, to the subject-matter relative to which it speaks, and to the circumstances existing at the time of the execution of the will relative to the testator's family and his estate." See, also, Bliven v. Borden, 56 R.I. 283, 288, 185 A. 239; Billings v. Gladding, R.I., 192 A. 216; Colton v. Colton, 127 U.S. 300, 8 S. Ct. 1164, 32 L.Ed. 138. Testimony to instructions given by the testator to the draftsman of the will which differ from its language are not admissible. Jenison v. Jenison, 51 R.I. 388, 155 A. 246; Rhode Island Hospital Trust Co. v. Bradley, 41 R.I. 174, 103 A. 486; Lewis v. Douglass, 14 R.I. 604, 605, 607.

In the instant case, everything depends upon the construction to be given to the language of the whole second clause of the will, which is a short clause disposing of the residue of the estate, and no light is thrown upon that language by any other part of the will. Besides the facts above set forth as to the relations of the parties to the testatrix and particularly the fact that the complainant was the sister of the testatrix and her only heir and next of kin at the time of the execution of the will, the facts which can properly be taken into consideration in construing this will, and which are either admitted by both parties to be true or are established by uncontroverted evidence, are as follows.

At the time when the will was executed, July 13, 1932, the complainant and the testatrix were the last survivors of their family and neither had a husband living. The testatrix was then about fifty-seven years old and the complainant was eighty years old and was practically without any means of supporting herself. In 1924 the husband of the testatrix invited the complainant to come and live with them and she did so and remained with them until his death in December, 1931, and continued to live with the testatrix until the latter's death February 26, 1935. The respondent herself testified that her brother and his wife, the testatrix, told her that they were to take care of the complainant and "see her through."

At the death of her husband the testatrix became the sole owner of the house and lot where they lived,' which had been owned by them as joint tenants. At the death of the testatrix she left, only this real estate, which was valued for tax purposes at $8,280, and some personal property, which was inventoried as of the value of $57.40. At the time when the will was executed, the respondent was the widow of a Mr. Beaman and apparently her relations with the testatrix were friendly but not intimate.

She afterwards married Rev. Mr. Trenberth.

Under these established circumstances the most natural and reasonable desire of the testatrix in making her will would be to provide for her sister to be taken care of for the rest of her life, in the rather improbable event that she would survive the testatrix and, subject only to such a provision, to give all the property, after payment of debts and funeral expenses and expenses of administration, to the respondent and to make her the executrix.

In the first of the numbered clauses of the will she directed her executrix, who was the respondent, to pay all the just debts of the testatrix, including those of her last illness and burial; and then in the next clause, the only disposing clause of the will, she said: "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."

Construing this language in the light thrown upon it by the facts above stated, its meaning is, in our judgment, fairly clear. The respondent contends that the only question is whether or not a precatory trust was created and that this question must be answered in the negative; but in our opinion this is not a fair statement of the question involved, because the words "with the understanding" are not words which express a wish or request. She contends that the word "understanding", as used in the will, refers only to the state of mind of the testatrix; and she would have the determinative words of the clause construed as if they were: "it being my understanding that if my sister, Elizabeth P. Rees Gould, shall survive me, my said sister-in-law will care for my said sister as long as the latter shall live."

If the provision in question had been thus worded, the question would be a close one, whether the testatrix, in using that language, was imposing a duty upon her sister-in-law. But in our judgment it is more reasonable, under the circumstances of the case, to construe the word "understanding" as intended to refer to the state of mind of the devisee at least as much as to her own state of mind. In other words, we believe that the phrase "with the understanding" should be construed as it would be if Mrs. Taber, instead of making a will, had, in her lifetime, sent $5,000 to her sister-in-law, inclosed in a letter in which she said: "I inclose to you herewith $5,000 as a gift to you, with the understanding that so much of it as shall be needed shall be used by you for the support of my sister, if and so long as she shall survive me." In our judgment, if the sister-in-law had received such a letter, inclosing $5,000, and...