Greene v. Rathbun

• Decision Date: 11 January 1911
• Citation: 78 A. 528,32 R.I. 145
• Parties: GREENE et al. v. RATHBUN et al.
• Court: Rhode Island Supreme Court

78 A. 528

32 R.I. 145

GREENE et al.

v. RATHBUN et al.

Supreme Court of Rhode Island.

Jan. 11, 1911.

Case Certified from Superior Court, Washington County; Willard B. Tanner, Presiding Justice.

Bill by William Greene by his guardian and others against Thomas W. D. Rathbun, as administrator with the will annexed of the estate of Reynolds Greene, deceased, for the construction of the will. Case certified to Supreme Court for hearing and final decree. Decree for complainant.

Gorman, Egan & Gorman, for complainants.

Herbert A. Rice, Frederick C. Olney and Lyman & McDonnell, for various respondents.

PARKHURST, J. This is a bill in equity praying the construction of the will of Reynolds Greene, late of North Kingstown, deceased. The bill was filed in the superior court for Washington county, and answer made thereto by the several respondents, admitting all of the essential allegations of the bill; and the cause, then standing for hearing upon bill and answer by the superior court was certified to this court for its determination as being a cause ready for hearing for final decree, and as being a bill for the construction of a will, in accordance with the statute in such case made and provided. Gen. Laws 1909, c. 289, § 35.

The essential facts as alleged and admitted by the bill and answers are that the testator. Reynolds Greene, deceased at North Kingstown on the 29th day of March, 1881, leaving a last will with a codicil which was duly probated June 28, 1881; that Rachel R. Greene was by the will named as executrix and was duly appointed and qualified as such and acted in that capacity during her lifetime; that said Rachel R. Greene died on the 6th day of September, 1905, and that the respondent, Thomas W. D. Rathbun, was duly appointed administrator d. b. n. c. t. a. In succession to the said Rachel R. Greene, deceased, and duly qualified, and is now acting as such; that at the time of the demise of the said testator, his son Oliver W. Greene had then living children as follows, to wit, Walter R. Greene, one of the complainants, Thomas A. L. Greene, Sarah L. Curtis, Samuel W. Greene, Oliver W. Greene, and Elizabeth Greene Nichols, wife of Joseph B. Nichols; that after the death of the testator there was born to the said Oliver W. Greene James H. Greene, born July 29, 1882, and Lottie B. Greene (now Rouse), born September 17, 1887; that the testator's said son Oliver W. Greene died June 10, 1895, intestate, and said Elizabeth Greene Nichols had died February 25, 1884, intestate, and without ever having issue born alive to her, leaving her father, the said Oliver W. Greene, son of the testator, her sole heir at law, and was also survived by her husband, the respondent, Joseph B. Nichols; that at the time of the death of said Rachel R. Greene all of the said children of Oliver W. Greene, the son of the testator, save Elizabeth Greene Nichols, were living; that by the said last will and codicil of the testator there was devised to Rachel R. Greene all the rest and residue of his real and personal estate for and during her natural life, in the words following, to wit, "give, devise, and bequeath unto my daughter Rachel R. Greene all the rest and residue of my real estate and personal property for and during her natural life she to support and furnish my son William Greene in sickness and in health with board and clothing and see that he is well provided for and taken good care of during his natural life. I hereby bind all the real estate and personal property given to my daughter Rachel R. Greene to secure his support as aforesaid after the death of my daughter Rachel R. Greene I give, devise and bequeath unto the children of my son Oliver W. Greene all the remainder of my real and personal estate to be divided in equal shares between them, to them, their heirs and assigns they being bound to the support of my son William Greene in case of the death of my daughter Rachel R. Greene as aforesaid;" that the residuary estate so devised and bequeathed to the said Rachel R. Greene for her life consisted of the east half of the Roomes Farm with the homestead thereon, lying easterly of the Boston Neck Road in the town of North Kingstown, and of personal estate, as shown by her inventory filed in the probate court, amounting to $11,524.45; that Rachel R. Greene during her lifetime kept and performed the conditions attached to the devise and bequest; that the respondent administrator is possessed as such administrator, succeeding said Rachel R. Greene, of personal estate of said Reynolds Greene of the value of $9,615.19. as of December 3, 1909, the date of the oath to the answer; that, upon the death of Rachel R. Greene, Walter R. Greene was appointed guardian of the person and estate of Wm. Greene, and has now in his possession of the personal estate of his ward the sum of $8,500, not, however, derived from the estate of Reynolds Greene; that since the death of Rachel R. Greene and the appointment of the guardian of William Greene, said guardian, under the advice and order of the probate court of North Kingstown, has applied the sum of $10 per week out of the estate of William Greene for his support and maintenance; that a difference of opinion has existed between the complainants and respondents as to the rights of William Greene in and to the real and personal estate devised and bequeathed to the children of Oliver W. Greene, and as to whether the support of William was and is a charge upon the real and personal estate, and whether said guardian is entitled to have and receive from said real and personal estate or from said devisees in remainder and said administrator, the sum said guardian has applied from said ward's estate, to wit, the sum of $2,000.

And the bill prays that said will be construed by the court as regards the following questions, viz.: (1) Did the devise and bequest in remainder in said Reynolds Greene's will vest in the children of Oliver W. Greene living at the time of the death of said Reynolds Greene? (2) Did the said children born to Oliver W. Greene after the death of said Reynolds Greene take any estate under his will? (3) Has William Greene the right to have and recover the sum applied by his guardian aforesaid to his support, out of the said real estate and personal estate? (4) Did the said real and personal estate vest in the children of Oliver W. Greene, the son of said Reynolds Greene, which were living at the time of said Reynolds Greene's death, or did it vest in said children of Oliver W. Greene living at the time of the death of said Rachel R. Greene? And the bill further prays that if the court is of the opinion that said William Greene has the right to have and recover the sum applied by his guardian to his support out of said real and personal estate, that an order and decree be made that the same be paid by such of the respondents as are liable to pay the same; and by said decree, to charge the same as a lien and charge upon said real and personal estate; and upon the parties charged, not paying the same, to direct the application of said personal estate to the payment of the same, or the sale of said real estate for the satisfaction of the same out of the proceeds of the sale thereof; and that the court further order and decree that such certain sum as this court shall deem just for the future support of said William Greene, shall be fixed and charged as a lien on such of said real and personal estate as may remain, and providing time for payment.

The answer of the respondent Rathbun, administrator, admitting substantially all of the essential allegations of fact as above set forth joins in the prayer for the determination of the rights of the respective parties to the bill. The other respondents by their joint and several answer admit all of the essential allegations of fact as above set forth, and pray for the determination of the following questions, viz.: (a) Was the devise and bequest in remainder in the will of the aforesaid Reynolds Greene to the children of Oliver W. Greene to only such as were living at the demise of said testator, or was the aforesaid devise and bequest to such children as a class, and became determined and fixed at the demise of Rachel Greene? (b) Did there vest in each child of the said Oliver W. Greene a remainder in the estate devised and bequeathed under the will of said Reynolds Greene and this so continue as children were born unto the said Oliver W. Greene and until the decease of the aforesaid Rachel Greene?

In order to the proper and orderly determination of the questions above set forth it becomes necessary and proper for the protection of the defendant Rathbun, administrator, to determine first, at his request, the following matters, viz.: (1) The nature of the interests which William took under the will. (2) Whether all the residuary estate, both real and personal, is charged with the payment of said interest. (3) Whether said charge continues during the lifetime of William or ceased at the death of Rachel. (4) Whether the residuary estate can be distributed prior to the decease of William. (5) Whether it was the intention of the testator that William should be maintained on the premises where he lived at the time of testator's death. The will provides that William is to be "supported"—to be furnished "in sickness and in health with board and clothing," to be "well provided for and taken good care of during his natural life." This is in effect a legacy to William.

In Farwell v. Jacobs, Adm., 4 Mass. 634, Parsons, C. J., in speaking of a direction in a will to the executor "to support the testator's aged father in sickness and in health," said: "The direction to support and maintain the plaintiff results from the bounty of the testator declared in his will, and must be considered, as to the remedy, as a legacy.".

The case of Baker v. Dodge, 2 Pick. (Mass.) 619, is similar. There the devise of the residuary estate, both real and...