In re Kenyon

• Decision Date: 06 August 1890
• Citation: 17 R.I. 149,20 A. 294
• Parties: IN re KENYON et al.
• Court: Rhode Island Supreme Court

20 A. 294

17 R.I. 149

IN re KENYON et al.

Supreme Court of Rhode Island.

Aug. 6, 1890.

Case stated for opinion of the court under Pub. St. E. I. c. 192, § 23.

The last will and testament of George C. Kenyon, late of East Greenwich, duly proven, is as follows: "I, George C. Kenyon, of East Greenwich, in the county of Kent, and state of Rhode Island, do make and publish this my last will and testament in manner following: First. After the payment of my just debts and the expenses of settling my estate, I give and bequeath all my estate, both real and personal, of whatever kind or nature, of which I shall die possessed, to Simeon F. Perry, of Westerly, in the county of Washington, and state of Rhode Island, and his heirs, to have and to hold, for and during the natural life of my son, Daniel C. Kenyon, in trust, to collect the rents and profits of the property hereby devised; and after the payment of all taxes and assessments thereon, and for necessary repairs thereto, to pay over the balance to my said son, Daniel C. Kenyon. And I further authorize and empower said trustee, whenever in his judgment it shall be necessary or proper to raise money for the purpose of paying off incum brances on said property, or for making repairs, additions, or improvements thereto, or to any part thereof, or if, in his judgment, some other investment shall be more advantageous or profitable, or whenever he shall deem the income or profits arising from said property insufficient to secure the necessary support and sustenance of the said Daniel C. Kenyon, or for his advancement in life, to sell or mortgage or lease for a term of years, with the written consent of the said Daniel C. Kenyon, the above-devised property, or any part thereof, for the best prices that can be obtained therefor. And the duly-executed deed of conveyance of said trustee, with the written consent of the said Daniel C. Kenyon attached thereto, or incorporated therewith, shall in all cases vest a clear and complete title in the purchaser thereof, free from the provisions of this trust. And it shall be the duty of said trustee, with the written consent of said Daniel C. Kenyon, to invest the proceeds of such sales not necessary for the payment of incumbrances on said property, or for repairs thereof, or for the necessary support and advancement of said Daniel C. Kenyon, in suitable improvements upon the remaining property, or in other secure and productive property. And all property purchased shall be held by the trustee under the same title and conditions, and with the same powers and privileges, as the property originally devised to him, and for such sums as said trustee shall expend in the sustenance, support, and advance ment of the said Daniel O. Kenyon; the receipt of said Daniel C. Kenyon shall be a sufficient discharge for said trustee: provided, however, that if the said Simeon F. Perry shall die in my life-time, and no other trustee shall have been duly appointed by me in my life-time, the above bequest shall then vest in the person who at the time of my death shall be or shall be acting as town-clerk of East Greenwich aforesaid and his heirs, until a trustee can be appointed as hereinafter provided, except that the said town-clerk or his heirs shall have no power to sell or otherwise con vey any of the property hereby devised; and provided, further, that, if the contingency mentioned in the last clause shall happen, or if the said Simeon F. Perry, or any other trustee, shall die during the continuance of this trust, or shall become incapable of fulfilling the duties thereof, or shall refuse to perform them, I hereby authorize and empower the supreme court of this state, sitting in any county thereof, to appoint another trustee; and upon such appointment the above bequest as regards the person or the heirs of the person so deceased or superseded shall cease and determine, and shall vest in full force with the same powers and privileges, and subject to the same conditions, in the person so appointed. Second. After the decease of said Daniel C. Kenyon, I give and bequeath all the property affected by the above trust which shall then remain to my own right heirs. Third. I appoint said Simeon F. Perry executor of this my last will and testament, and hereby revoke all former wills and testaments by me made. In testimony whereof I have hereunto set my hand this thirty-first of the seventh month, A. D. 1863. GEORGE C. KENYON. Signed, published, and declared by George C. Kenyon as and for his last will and testament in our presence, who have, at his request, in his presence, and in presence of each other, set our names as witnesses. EBENEZER SLOCUM. DAVID C. POTTER. JOSEPH W. CONGDON. "After the death of Daniel C. Kenyon, childless and intestate, the administrator of his estate and the then heirs at law of George C. Kenyon presented this petition to the court to determine what disposition was made by the will of the latter of the remainder after trustee's estate for the life of Daniel C. Kenyon.

Edwin Metcalf and Charles J. Arms, for administrator of Daniel C. Kenyon. William W. Blodget, Samuel W. K. Allen, and Albert R. Greene, for heirs of George C. Kenyon.

DURFEE, C. J. The case stated shows that George C. Kenyon died at East Greenwich in 1874, leaving real and personal estate, and one son, Daniel C. Kenyon, his only heir at law. He left a will by the first clause of which he devised and bequeathed all the residue of his estate, after payment of his debts," to Simeon F. Perry * * * and his heirs, to have and to hold, for and during the natural life of my son, Daniel C. Kenyon," in trust for said Daniel, with power to sell, mortgage, or lease the same, with said Daniel's written consent, for the purpose of paying off incumbrances, making repairs, improving the investment, or raising money for the necessary support or for the advancement of said Daniel. The second clause is as follows, to-wit: "After the decease of said Daniel C. Kenyon, I give and bequeath all the property affected by the above trust which shall then remain to my own right heirs." Daniel C. Kenyon died in 1887, without issue. The estate remaining is claimed on the one hand by persons who, if the testator had died childless, would have been at the time of his death, and who are now, his sole heirs at law. On the other hand it is claimed by the administrator on the estate of Daniel C. Kenyon as said Daniel's estate, liable as such for the payment of his debts, his claim being that it vested in said Daniel under said second clause, by way of remainder, at the death of the testator, said Daniel being the testator's only "right heir." We are asked to say which of the two claims is right.

It is contended for the heirs at law that the estate could not pass under the second clause as a remainder, because it was given by the first clause to Simeon F. Perry in fee-simple, after which there can be no remainder. The second clause, it is argued, could only take effect by way of executory devise. We are not convinced by the argument. It is true that the residuary estate is given to Simeon F. Perry" and his heirs," but nevertheless it is only given to him and his heirs for and during the natural life of Daniel C. Kenyon, and in our opinion the devise, correctly interpreted, creates only an estate pur autre vie; i. e., for the life of said Daniel, the heirs of said Perry taking after him, if he had died before said Daniel, as special occupants. Carpenter v. Dunsmure, 3 El. & B1.918; Doev.Robinson,8 Barn. & C.296; Atkinson v. Baker, 4 Term R. 229. See, also, Doe v. Considine, 6 Wall. 458, where an estate devised to a trustee and his heirs for objects terminating with lives in being, with remainder over, was held to be constructively only an estate pur autre vie, such an estate being sufficient for all the purposes of the trust. We think there was nothing to prevent the estate from passing under said clause by way of remainder.

It is contended for the heirs at law that the language of the first clause is such as shows an intent on the part of the testator to give to his son, Daniel, only an estate for life. The first clause clearly shows an intent to put the estate, during the life of this son, in the trammels of a trust, but it does not in express terms limit the son to the estate so put in trust, nor use any language which is necessarily inconsistent with his taking in remainder. It is urged that the powers given to the trustee to dispose of the entire estate for the son's benefit, but not without the son's written consent, would not have been given so if the testator had intended to have his son take not only the equitable life-estate, but also the legal remainder. We do not think this is...