Hammill v. Anderson

Decision Date28 June 1920
Docket NumberNo. 469.,469.
Citation110 A. 422
PartiesHAMMILL v. ANDERSON et al.
CourtRhode Island Supreme Court

Case Certified from Superior Court, Providence and Bristol Counties.

Bill in equity by Frank H. Hammill, d. b. n. c. t. a. of Lyman B. Bosworth, against Barbara A. Anderson and others, for the construction of a will. Certified in accordance with Gen. Laws 1909, c. 289, § 35. Will construed.

Frank H. Hammill, of Providence, for complainant.

McGovern & Slattery and Joseph A. Hammill, all of Providence, for various respondents.

RATHBUN, J. This is a bill in equity brought by Prank H. Hammill d. b. n. c. t. a.

of Lyman B. Bosworth for construction of certain provisions of the will. The case is certified to this court in accordance with section 35, c. 289, G. L. 1909. Respondents Barbara A. Anderson, Barbara Anderson Church, Dorothy Barbara Anderson, a minor, and the town of Bristol are the only persons interested in the administration of the estate of said Lyman B. Bosworth. Each respondent was duly served with subpoena. Respondents Barbara A. Anderson and Barbara Anderson Church each has filed an answer admitting the allegations in the bill and claiming a legacy of $200. Respondent Dorothy Barbara Anderson appears by her guardian ad litem and files an answer claiming the whole estate.

Immediately after the cause was argued in this court the town of Bristol by its treasurer entered an appearance and stipulated that it did not care to be heard upon the merits of said cause. The treasurer also filed a certified copy of a vote of the town council of said town authorizing its treasurer to make the above stipulation.

The portions of the will material for our consideration are as follows:

"After paying all my just debts, funeral expenses and expenses incurred in settling my estate, it is my will that all my estate which I may die seized and possessed of, whether real, personal and mixed, whether ever the same may be found, shall inure to my beloved granddaughter-in-law, Doroth Barbara Anderson, daughter of Robert H. Anderson (and Mary F. Anderson, lately deceased).

"It is my will that all the estate which I may die seized and be possessed of be sold as soon as may be convenient to my executor, hereinafter named. The property on the north side of Church street to be sold for not less than ($3,000.00) three thousand dollars, the property on Juniper Hill Lane for not less than ($1,400.00) fourteen hundred dollars, and the proceeds arising from such sales, after paying debts heretofore mentioned, shall be deposited by my executor as he may deem best in some paying institution at not less than four per cent. per annum, and there remain until my granddaughter-in-law, Doroth Barbara Anderson, shall have attained the age of sixteen years. But if my said granddaughter-in-law should not attain the age of (10) sixteen years, it is my will to my executor, that after paying the legacies hereinafter named, to wit: Mrs. Barbara A. and Miss Barbara A. Anderson, grandmother and aunt of my beloved granddaughter-in-law, Doroth Barbara, the sum of two hundred dollars each.

"It is further my will that the sum of ($200.00) two hundred dollars be expended on the burial lots of my family in the North Cemetery, situated in the town of Bristol.

"It is further my will that the rest and residue of income shall be expended by my executor, hereinafter named, for clothing, schooling and incidental expenses, or as he may see fit."

Testator was accustomed to refer to Dorothy Barbara as his "granddaughter-in-law, Doroth."

The testator deceased on the 29th day of September, 1906, and his will was admitted to probate by the probate court of the town of Bristol. Robert H. Anderson, who was named as executor in said will, duly qualified as executor, but died on the 24th day of June, 1918, without having administered said estate. On the 16th day of September, 1918, the complainant was duly appointed administrator d. b. n. c. t. a. of said estate.

The estate consisted of a small amount of personalty and two parcels of real estate situated in said town of Bristol, described as follows: Eleven house lots upon Juniper Hill lane and a house and lot on the north side of Church street. The complainant has by order of said probate court sold, for the purpose of paying testator's debts, the house and lot on the north side of Church street. The complainant represents that—

"He has paid the debts of said estate except expenses of administration, and now has funds in his hands sufficient to pay the expense of administration and the legacies provided in said will if this court shall determine said legacies to be due and payable."

Subsequent to the making of said will the testator entered into a contract to sell two of said house lots on Juniper Hill lane for $100, and received as a part of the purchase price the sum of $20. The person contracting to purchase said lots never received a deed, but has been ready and willing at all times to accept a deed and pay the balance of the purchase price. Dorothy Barbara Anderson is now more than 16 years of age.

The parties agree:

"That the value of said Juniper Hill lane property at the time of the testator's death was and is now much less than $1,400. and that it would be impossible for the complainant to sell said property for the sum named in said will."

The complainant prays that he may be instructed:

"(1) Whether or not the estate above described would under the second paragraph of said will pass as a fee-simple estate to Doroth Barbara Anderson alias, or whether Doroth Barbara Anderson alias would take only a life interest in said estate; and what is the meaning and construction to be given to the word 'inure.'

"(2) Whether or not your complainant under the authority set forth in paragraph 3 of said will could sell at private sale or public auction the property on Juniper Hill lane for a sum less than $1,400.

"(3) Whether, Doroth Barbara Anderson having now attained the age of 16 years, your complainant can pay to said Doroth Barbara Anderson, or her guardian, the balance of the proceeds of said sale.

"(4) Whether, Doroth Barbara Anderson having now attained the age of 16 years, Mrs. Barbara Anderson and Mrs. Barbara A. Anderson Church are entitled to the legacies mentioned in said will.

"(5) Whether or not your complainant can legally expend the sum of $200 on the burial lots of the family of said Lyman B. Boswortli in the North Cemetery situated in the town of Bristol and owned by the respondent the said town of Bristol.

"(6) What is the meaning of the clause of said will wherein it is provided that the rest and residue of income shall be expended for clothing, schooling, and incidental expenses as be may see fit?"

f【1] Under the second paragraph of the will does Dorothy Barbara Anderson take the real estate in fee simple and an absolute estate in the personalty or does she take merely a life estate? If she takes a life estate only, the remainder is intestate estate. Courts will construe a will so as to avoid partial intestacy if such construction appears reasonable and natural. In the absence of convincing evidence to the contrary, it is to be presumed that a testator intends to...

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4 cases
  • Gaboriault v. Gaboriault, 1646.
    • United States
    • Rhode Island Supreme Court
    • June 24, 1943
    ...now before us, especially by the sixth and seventh clauses thereof. In this connection the complainants have cited to us Hammill v. Anderson, 43 R.I. 103, 110 A. 422. In our judgment that case is distinguishable from the present one. There the circumstances in respect to the will under cons......
  • Oarr v. Railton
    • United States
    • Rhode Island Supreme Court
    • March 6, 1941
    ...has been consistently referred to and followed in this state. Industrial Trust Co. v. Gardner, 44 R. I. 404, 117 A. 541; Hammill v. Anderson, 43 R. I. 103, 110 A. 422; Cook v. Cook, 35 R. I. 342, 86 A. 899; Smith v. Greene, 19 R. I. 558, 35 A. Looking at this will and searching first of all......
  • Dunham v. Randall
    • United States
    • Rhode Island Supreme Court
    • June 17, 1930
    ...Pell v. Mercer, 14 R. I. 421, 427; Smith v. Greene, 19 R. I. 558, 35 A. 148; Fiske v. Fiske, 26 R. I. 509, 59 A. 740; Hammill v. Anderson, 43 R. I. 103, 110 A. 422; Woodward v. Congdon, 34 R. I. 316, 83 A. 433, Ann. Cas. 1914C, 809. In this latter case it was said that the obvious intent of......
  • Tirocchi v. Tirocchi, 1577.
    • United States
    • Rhode Island Supreme Court
    • June 18, 1941
    ..."Courts will construe a will so as to avoid partial intestacy if such construction appears reasonable and natural." Hammill v. Anderson, 43 R.I. 103, 107, 110 A. 422, 424. For the reasons above stated, the questions propounded should be answered as 1. The executor is directed to cancel the ......

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