Indus. Trust Co. v. Hall

• Decision Date: 28 February 1941
• Docket Number: No. 1528.,1528.
• Parties: INDUSTRIAL TRUST CO. v. HALL et al.
• Court: Rhode Island Supreme Court

18 A.2d 629

INDUSTRIAL TRUST CO.

v. HALL et al.

No. 1528.

Supreme Court of Rhode Island.

Feb. 28, 1941.

MOSS, J., dissenting in part.

CONDON, J., dissenting.

Case certified from Superior Court, Providence and Bristol Counties.

Suit by the Industrial Trust Company, trustee under the will of Ida E. Whitman, deceased, against Georgia L. Hall and others, for construction of will, certified to the Supreme Court under Gen. Laws 1938, c. 545, § 7.

Decree in accordance with opinion.

Huddy & Moulton and Stanley H. Smith, Jr., all of Providence, and Corcoran & Mangan, of Pawtucket, for complainant.

Woolley, Blais & Quinn, of Pawtucket, for Georgia L. Hall.

Hinckley, Allen, Tillinghast & Wheeler, Chauncey E. Wheeler, and Isadore Paisner, all of Providence, for certain respondents.

Francis R. Foley, of Pawtucket, guardian ad litem.

CAPOTOSTO, Justice.

This is a suit begun by a bill in equity filed in the superior court by the trustee under the will of Ida E. Whitman, deceased, for the construction of certain parts of that will, and for answers to certain questions which are presented by them. These are the parts pertaining to the trust which is provided for in the will and which is mainly for the benefit of the respondent Georgia L. Hall, granddaughter of the testatrix. The other respondents are all the other persons and corporations having interests under the trust. None of the respondents is a minor.

A person was duly appointed by the superior court to represent the contingent interests of persons not in being or not ascertainable and filed an answer neither admitting nor denying the allegations of the bill, and submitting the rights and interests of such persons to the care and protection of the court. Decrees pro confesso were entered against five respondents who had not filed answers. The other respondents duly answered and a general replication was filed by the complainant.

In due course evidence was introduced in the superior court. When that was completed, the cause, being ready for hearing for final decree, was certified by that court to this court for determination in accordance with general laws 1938, chapter 545, § 7.

The will in question was duly executed by the testatrix on August 12, 1926, when her granddaughter, Georgia L. Hall, was a few days more than eight years old. The testatrix died on May 16, 1930, her husband having deceased in the meantime; and the will was admitted to probate in due course. Emma H. Bebby, named in the will as Emma Bebby, was duly appointed by the probate court as guardian of the person and estate of Georgia L. Hall, as provided in the will, and acted as such until her ward reached the age of twenty-one years on August 22, 1939. Georgia L. Hall is now married. Hereafter, unless necessary to do otherwise, we shall refer to her as Georgia.

The will was drawn by a lawyer. We now set out its pertinent provisions in full, and briefly summarize all others. Clauses first, second and third are concerned with the payment of debts and funeral expenses, appointment of an executor and a guardian for Georgia. Clause fourth devises the entire estate of the testatrix to her husband, Albert H. Whitman, for and during the term of his natural life, "In Trust, for the benefit of my said grand-daughter, Georgia L. Hall, for like purposes and with the same powers, directions, provisions and conditions as those specified in the paragraph hereinafter numbered 'Sixth'; provided, however, that all property and the net accumulations thereof shall be kept intact until Georgia L. Hall's own estate shall be exhausted." Clause fifth gives the household furniture and furnishings to Georgia upon the death of testatrix' husband. Although clause fourth became inoperative because of the prior decease of testatrix' husband, it deserves consideration in ascertaining her intention, which alone controls our determination of the questions submitted to us in this cause.

Clause sixth, which is the only one of which a construction is sought in this cause, is as follows:

"Upon the death of my said husband, Albert H. Whitman, I hereby give, devise and bequeath all the rest and residue of my estate, of whatever nature and kind and wheresoever situated and found, to the Industrial Trust Company, in trust, for the benefit of my grand-daughter, Georgia L. Hall; to invest and reinvest said trust estate in such securities as are legal for savings banks in the State of Rhode Island; to collect all interest income and dividends accruing from said trust estate; to make all repairs, alterations and improvements upon the real estate of said trust estate that may be in its judgment necessary and proper; to pay all taxes, assessments and charges upon said trust estate, including a reasonable compensation for its own services; to pay all bills for the maintenance, support and education of said Georgia L. Hall, a college education if she so desires; and it is my wish that any special talent that she may show be developed; also to pay all bills and charges for medicine and medical and surgical attendance and services, and funeral and burial, and lettering suitable inscription for her on the family monument at the North Burial Ground, Providence, Rhode Island; and, if it be necessary, to draw upon the principal of said trust estate to make up any deficiency that may be occasioned by the expenses enumerated above.

"And I authorize and empower my said trustee to sell my real estate, either at public or private sale, if, in its judgment, it deems it for the best interests of the estate, at such price and upon such terms and conditions as to it shall seem best (and the purchaser or purchasers shall not be required to see to the application of the purchase price.)

"And I direct my said trustee to pay to said Georgia L. Hall such sums for pin money as to it shall seem fit and proper; and in case that she shall be in want or distress, I direct my said trustee to pay to the guardian of said Georgia L. Hall while she is under guardianship so much of said trust estate as may be needed to relieve said Georgia from said want or distress, and if she be not under guardianship, then to pay such sum or sums directly to her, the said Georgia L. Hall. And I further direct my said trustee to pay to Ruth Bebby, daughter of said Emma Bebby, the sum of five dollars quarterly, and the sum of five dollars at Christmas time of each year so long as said Georgia L. Hall shall live with her and they shall be companions, but not in any event beyond the time whcn said Ruth Bebby shall attain the age of eighteen years.

"And it is expressly provided that said trust estate and the net accumulations thereof shall be kept intact until said Georgia L. Hall's own estate is exhausted and shall continue during her life, provided, however, that when she attains the age of twenty-one years, my said trustee shall pay and turn over to her one-fourth of said trust estate then remaining in its hands free and discharged from said trust, and shall pay her another one-fourth of said trust estate then remaining when she attains the age of thirty years, free and discharged from said trust. The other half of said estate shall remain and continue in trust as aforesaid during the life of said Georgia L. Hall."

Clauses seventh, eighth, ninth and tenth provide that upon the death of Georgia the trust should terminate; that whatever estate might then "be remaining in the hands of my then trustee" is to go to the children of Georgia L. Hall, then living, if any there should be, in equal shares, as their absolute property; and that if Georgia should die childless, to the sisters of the testatrix and other named beneficiaries, in various sums and proportions.

Clause eleventh provides for employment of counsel by executor and trustee.

It is agreed by all parties to this cause that the problems before us are to be solved by ascertaining the intention of the testatrix. This intention is to be ascertained from a consideration of the whole will without the aid of extrinsic evidence, unless a latent ambiguity exists. To ascertain this intention, it is well established that the testatrix' language should not only receive a sensible interpretation but should be interpreted with reference to the whole will, keeping in mind that the plan or scheme of the will and the objects which it seeks to attain are material factors in determining such intention. These fundamental rules of construction require no citation of authorities.

It may not be amiss at this time to observe that the will should be interpreted from the point of view of the testatrix as found therein, and not from the present point of view of the beneficiary. Another observation of a preliminary nature is that when the testatrix provided in clause sixth that the trust estate should be kept intact "until said Georgia L. Hall's own estate is exhausted", she was not referring to any estate created under this will.

Our examination of the will before us discloses no latent ambiguity in connection with the matters submitted for our determination. In the circumstances, we are bound to ascertain the testatrix' intention solely from the will, without recourse to extrinsic evidence in ascertaining that intention. We will therefore disregard such evidence.

It is beyond question that the testatrix was primarily concerned with the comfort, happiness and future welfare of her granddaughter, Georgia. But while testatrix treated her with great liberality, nowhere in the will, except in the case of household furniture and furnishings, do we find her giving directly to Georgia any gift, as such.

A careful study of the will convinces us that this was not inadvertent, but that material care for the protection and security of Georgia was the dominant intention of the testatrix. Clauses fourth and sixth, which put her entire residuary estate in trust for Georgia, are by no means a mere wordy method adopted by the testatrix to devise...