In re Kimball's Will

• Decision Date: 13 July 1898
• Parties: In re KIMBALL'S WILL.
• Court: Rhode Island Supreme Court

40 A. 847

20 R.I. 619

In re KIMBALL'S WILL.

Supreme Court of Rhode Island.

July 13, 1898.

In the matter of the will of Henry C. Kimball, questions arose as to its construction, and were stated for the opinion of the supreme court.

Edwards & Angell, Albert Gerald, and Frank L. Hinckley, for parties.

MATTESON, C. J. This is a case stated for the opinion of the court. The questions involved arise on the will of Henry C. Kimball, late of Providence, deceased, which bears date June 8, 1876. The third clause of the will gives to the testator's son, Frank Freeman Kimball, the testator's watch, chain, clothing, certain jewelry, a silver salver, and three-fourths of a safe and cabinet. Frank Freeman Kimball died before the testator, so that this legacy lapsed; and the question is made whether the articles specified fall into the residue under paragraph 5 of the third clause, or into the residue under the fourth clause. Paragraph 5 of the third clause purports to dispose only of the rest and residue of the testator's household goods and effects, including books, pictures, furniture, and the like. Household goods and effects, even as thus defined, cannot be held to include a watch, chain, clothing, and jewelry; and our opinion, therefore, is that these articles must be regarded as falling into the residue under the fourth clause, which embraces the residue of the testator's property generally, and that the silver salver and the share of the safe and cabinet must be regarded as falling into the residue under paragraph 5 of the third clause, as household effects.

The fourth and fifth clauses of the will, so far as material, are as follows: "Fourth. I direct that the rest, residue, and remainder of my estate, of every description, real and personal, including the policy of insurance, for the sum of ten thousand dollars, which I hold in the New England Mutual Life Insurance Company, be divided into seven (7) equal parts, whereof I devise and bequeath to my son, Frank P., two (2) seventh parts, to my daughters Gertrude S. and Edith each two (2) seventh parts, and to my daughter Ruth Owen one (1) seventh part, to hold to them, their heirs, executors, administrators, and assigns, forever, subject, however, to the following qualifications and conditions, namely: I direct that the sum by me expended in the education of my said son, Frank, be treated as an advancement, and, in consideration thereof, that his aforesaid portion of two-seventh parts be reduced by the sum of one thousand dollars, and that the aforesaid portions of my said daughters Gertrude and Edith be increased each in the sum of five hundred dollars. And, further, my will is that my daughters, the said Gertrude, Edith, and Ruth, shall not during their minority receive any part of the principal, but only the income of their respective shares as bequeathed and devised by clause fourth of this will, unless their guardians and the executors hereof shall deem such income insufficient for their education and support, or insufficient by reason of some extraordinary necessity to their welfare pertaining, in which event I desire that so much, and so much only, be taken from the principal of their respective portions as aforesaid as may be necessary properly to meet the emergency arising in each individual case, to the end that my said daughters be in the receipt and enjoyment, as nearly as may be, of the entire principal of their respective portions upon the attainment of their majority. Fifth. * * * In case any one of my said children should die without issue living, whether of age or not, I desire and direct that the portion of such deceased child, as created by this will, less so much thereof as may be expended at the time of the decease, be divided equally among my then surviving children, and the issue, if any, then living of any deceased child of mine: provided, the portion of any such deceased child shall not have been otherwise disposed of by will of the deceased duly made after becoming of age. In case all my said children should die under...