Hazard v. Gushee

• Decision Date: 26 June 1913
• Citation: 87 A. 201,35 R.I. 438
• Parties: HAZARD v. GUSHEE et al.
• Court: Rhode Island Supreme Court

87 A. 201

35 R.I. 438

HAZARD

v. GUSHEE et al.

Supreme Court of Rhode Island.

June 26, 1913.

Case certified from Superior Court, Providence and Bristol Counties.

Suit by Samuel A. Hazard, administrator, against Thomas C. Gushee, executor, and others, for the construction of a will. Cause certified from superior court on agreed statement of facts under Gen. Laws 1909, c. 289, § 35, after decree pro confesso was entered against certain respondents not appearing. Questions answered as stated, and cause remanded for further proceedings.

Clarence A. Aldrich, of Providence, for complainant.

Benjamin W. Smith, Benjamin W. Grim, Tillinghast & Collins, Harold B. Tanner, and Gardner, Pirce & Thornley, all of Providence, for various respondents.

PARKHURST, J. This is a bill in equity to determine the true construction of the will of Gustine L. Hurd, deceased, and for instructions to the complainant as administrator with the said will annexed. The cause being ready for hearing for final decree, it was duly certified to the Supreme Court by decree of the superior court entered the 12th day of March, A. D. 1913. By stipulation dated March 18, 1913, and filed in court, the complainant and the several respondents who have appeared are agreed that for the purposes of the case the facts set out in the bill of complaint may be taken as true; decree pro confesso has been duly entered against the other respondents who have not appeared. These facts, so far as they affect the questions raised by the bill and answers, are set forth substantially as follows in the bill of complaint:

Gustine L. Hurd deceased at said Providence on the 1st day of October, A. D. 1910, leaving a last will and testament, of which the following is a true copy:

"I, Gustine L. Hurd, of the city and county of Providence, state of Rhode Island, do hereby make and declare this to be my last will and testament.

"I desire that such worldly estate as I may die seized of, or to which I may be entitled at the time of my decease, by inheritance or otherwise, shall be disposed of in the following manner, to wit:

"After the payment of all charges connected with my sickness and burial and other just debts I give and bequeath to the following named persons, their heirs and assigns, the following sums:

"1st. To my uncle Lewis Vickery of Hillsborough Upper Village, New Hampshire, one thousand dollars $1,000.

"2nd. To my cousin Daniel L. Vickery, of East Washington, New Hampshire, five hundred dollars $500.

"3rd. To my cousin Jennie E. Vickery of Hillsborough Upper Village, New Hampshire, five hundred dollars $500.

"4th. To Rachel Vickery, widow of my uncle Benjamin Vickery, of Hillsborough Lower Village, New Hampshire, three hundred dollars $300.

"5th. To Ellen Vickery, my cousin, divorced wife of Samuel Strickland, of Hillsborough Lower Village, New Hampshire, three hundred dollars $300.

"6th. To my cousin Shubael W. Hurd of Washington, New Hampshire, five hundred dollars $500.

"7th. To my cousin Henry Hurd of East Lempster, New Hampshire, five hundred dollars $500.

"I also give and bequeath to the persons hereafter mentioned the following sums. If any of such persons are not living at the time this instrument is executed the bequest made to them shall be equally divided between those hereinbefore named:

"1st. To my aunt Emily Vickery of East Washington, New Hampshire, one hundred dollars for the purchase of some keepsake.

$100.

"2nd. To Mrs. Lurena Corliss of Providence, R. I., one hundred dollars $100.

"3rd. To Charles Hazeltine, Providence, R. I., one hundred dollars $100.

"4th. To Charles H. Prouty of Providence, R. I. (Sherburne St.), three hundred dollars $300.

"5th. To Annie B. Lovejoy, of Providence, R. I., three hundred dollars $300.

"6th. To Jennie G. Irwin of Providence, R. I. (Pearl St), fifteen hundred dollars.

$1500.

"Also such works of the poets as I may possess, three pictures from among my oil paintings that she may choose and Webster's Unabridged Dictionary.

"7th. To Maria L. Smith, so long connected with our family, one thousand dollars.

$1,000.

"I also give, devise and bequeath to the said Maria L. Smith, her heirs and assigns anything that remains after satisfying the above bequests, whether real or personal (with the exception of mortgage securities directly to be mentioned), including the furniture and all the belongings of housekeeping at 98 Cranston St., Providence, R. I., my watch and chain and all other jewelry, books, and pictures, except such as hereinbefore mentioned, and portraits of my father and mother.

"I desire that the mortgages on Western farms standing in the name of myself and my late mother, Laura V. Hurd, amounting to something more than five thousand dollars, shall be held in trust by the executor of this will and reinvested when they expire in the best manner consistent with safety; the income therefrom to be paid to the said Maria L. Smith, annually during her life; and the entire amount then given in equal parts to the institution designated as the Old Men's Home in Providence, R. I., and the Shedd Free Library in Washington, N. Hampshire, the latter upon the same conditions as those of the bequest of Sarah Shedd the founder of the Library.

"I desire also that the provisions of this will shall not be published in the newspapers.

"And lastly I nominate, constitute and appoint William H. Latham, of Providence, R. I., sole executor to carry out the provisions of this instrument. Gustine L. Hurd.

"Signed, sealed, published and declared by the said Gustine L. Hurd as and for his last will and testament in our presence who have in his presence and in the presence of each other and at his request hereto set our names as witnesses this tenth day of July, A. D. 1885. Louis L. Angell.

"Isaac W. Sawin."

This will was duly probated in Providence November 22, 1910. The testator, Gustine L. Hurd, was never married. Lewis Vickery, mentioned in clause 1 of the first part of the will, died before the testator, leaving issue living at the death of testator, as follows: Daniel L. Vickery, a son, Mary E. Myers, a daughter, Jennie E. Vickery, a daughter, George C. Vickery, a son, all living when the bill was filed. Daniel L. Vickery (clause 2, of first part) was living when the bill was filed. Jennie E. Vickery (clause 3 of first part) was living when bill was filed. Rachel Vickery (clause 4 of first part) died before testator. She had three children, Ellen, Elizabeth, and Rodney Vickery, all of whom died before testator. Ellen Vickery married Samuel Strickland and had five children, Flora, Cora, Belle, Norman, and Clarence. Flora married Eugene Hoyt, and was living when the bill was filed. Cora married and died before the death of testator, leaving a daughter Maude M. Robinson, living when bill was filed. Belle married Bertram Nichols, and died before death of testator, leaving a daughter Ella G. Nichols living when bill was filed. Norman and Clarence Strickland were living when bill was filed. Elizabeth M. Vickery married John Strickland, and died before testator, leaving one son, Chester Strickland, who was living when bill was filed. Rodney Vickery died before testator, leaving two sons, Frank Vickery and Eugene Vickery, who were living when the bill was filed. The above-named living persons are all of the issue of said Rachel Vickery, living at the death of the testator. Ellen Vickery (clause 5th of first part) died before the testator, and is the same Ellen Vickery above named, daughter of Rachel Vickery, and her issue are as above set forth. Shubael W. Hurd (clause 6 of first part) died before testator, leaving a son, Fred O. Hurd, and a daughter, Alice M. Brown, both living when bill was filed. Henry Hurd (clause 7 of first part) died before testator, leaving two sons, viz., Frank E. Hurd, Edson A. Hurd; also the children of his deceased daughter Nellie M. Hurd, viz., Frank, Alton, Leo, and Clarence Hodgman and Edna E. Lund; all living at death of testator.

It thus appears that of the seven persons mentioned in the seven clauses of the first part of the will Daniel L. Vickery and Jennie E. Vickery survived the testator, and were living when the bill was filed, and the other five persons predeceased the testator leaving lineal descendants who were living when the testator died and when the bill was filed. It further appears that all of the persons mentioned in the seven clauses of the second part of the will died without issue prior to the death of the testator, excepting Annie B. Lovejoy mentioned in the fifth clause of said second part, who died February 12, 1912, and Jennie G. Irwin mentioned in the sixth clause of said second part, who died January 8, 1911, and that Howard L. Wheeler and Adeline M. Wheeler are the executors of the will of Annie B. Lovejoy, and that Thomas C. Gushee is the executor of the will of Jennie G. Irwin. It further appears that no mortgages on Western farms standing in the name of the testator or his mother were found after testator's death after diligent search by the administrator, and that he has not been able to trace the proceeds of any such mortgages as a part of the testator's estate.

The complainant asks for the construction of the will and the instructions of this court in the particulars set forth in the following questions, viz.:

"(a) Do the words 'at the time this instrument is executed,' as used in the beginning of the second part of said will, which is as follows: 'I also bequeath to the persons hereafter mentioned the following sums. If any such persons are not living at the time this instrument is executed, the bequest made to them shall be equally divided between those hereinbefore named'—refer to the date of the signing of the will by the testator, the date of the death of the testator, the date of the probate of the will, or some other date?

"(b) Certain legatees mentioned in the first part of said will died during the life of the testator, leaving...