Indus. Trust Co. v. Wilson

• Decision Date: 29 June 1937
• Docket Number: No. 1315.,1315.
• Citation: 192 A. 821
• Parties: INDUSTRIAL TRUST CO. v. WILSON et al.
• Court: Rhode Island Supreme Court

192 A. 821

INDUSTRIAL TRUST CO.

v. WILSON et al.

No. 1315.

Supreme Court of Rhode Island.

June 29, 1937.

Case certified from Superior Court, Providence and Bristol Counties.

Bill in equity by the Industrial Trust Company, trustee, against Elizabeth Wilson and others, which bill was certified to the Supreme Court.

Decree in accordance with opinion.

Eliot G. Parkhurst and Edwards & Angell, all of Providence, for complainant. Charles R. Haslam, of Providence, guardian ad litem for Caldwell and Byron Colt. Harry A. Tuell, of Providence, and John N. Regan, of New York City, for guardian. Edward W. Day, of Providence, guardian ad litem for Melba Colt. Lee A. Worrell, of Providence, for Melba P. Colt, administratrix. George Hurley, Walter V. Moriarty, and John W. Moakler, Jr., of Providence, for Elizabeth Colt Wilson.

CAPOTOSTO, Justice.

This bill in equity for instructions is brought by the executor and trustee under the will of Colonel Samuel Pomeroy Colt, late of Bristol, R. I. The only other parties to the bill, who are all joined as respondents, are the children of Roswell C. Colt, one of whom is a posthumous child, and the administratrix of Roswell's estate, who also appears as guardian ad litem for the minor children born after the death of Colonel Colt. Upon this record the case was certified to this court for determination under General Laws 1923, c. 339, § 35.

Colonel Colt executed his present will on December 28, 1917, and died August 13, 1921. Two sons, Russell G. and Roswell C. Colt, and a brother, Le Baron B. Colt, survived him, all of whom, with their children and the children of such children, were at that time, or are now or may be in the future parties in interest in the trust created by clauses 27 and 28 of the will.

Following certain provisions not now material, the pertinent language in clause 28, which gives rise to questions 1, 2, and 3 in the instant case, is as follows: "The remaining three parts or shares of said residuary estate shall be held by my Trustee upon the trusts hereinafter expressed. My Trustee shall pay over semi-annually or oftener in its discretion the net income arising therefrom in equal shares to my two sons, Russell Griswold Colt and Roswell Christopher Colt and my brother Le Baron Bradford Colt, for and during the terms of their natural lives; and upon the decease of any of them should such deceased son or brother survive me, otherwise from and after my decease, my Trustee shall pay to the surviving child or children of such deceased son or brother for and during the term of his, her or their natural life or lives the share of said net income to which such deceased son or brother would be entitled if living." The rest of clause 28 deals with certain contingencies and the termination of the trust.

It appears from one of the briefs filed in the instant case that when Colonel Colt died the son Russell had three living children, and the son Roswell had one living child, the respondent, Elizabeth (Colt) Wilson. Roswell's wife, who was living at the testator's death, subsequently deceased. In 1927, Roswell married Melba C. Colt, who is a party respondent in this case as administratrix of Roswell's estate and also as guardian ad litem for the three minor children of Roswell, born of this marriage, who are also parties respondent in this case. Roswell Colt died May 1, 1935. The brother of the testator, Le Baron B. Colt, who has since died, had four living children, three of whom had living children of their own, at the time of Colonel Colt's death.

We have no means of knowing whether this statement of the children and the children's children of the sons, Russell G. and Roswell C. Colt, and of the brother, Le Baron B. Colt, is either complete or correct. Undoubtedly, the executor and trustee of Colonel Colt's will is already fully informed as to these particulars, or, at least, is in a position to readily secure whatever further information it may require respecting these matters.

In the instant case only the living children of Roswell C. Colt and the administratrix of his estate have been made parties to the bill. All other persons in being and the contingent interests of all persons not in being and not ascertainable, who have or may have rights under clause 28 of the will dependent upon our construction of the language submitted to us in this case, are not parties to these proceedings. This situation will be considered by us later in this opinion.

The question submitted by the parties now in this case and which have been certified to this court are as follows: "(1) Whether the defendants, Caldwell Colt and Byron Colt, are members of the class of the surviving child or children of said Roswell C. Colt entitled under the Twenty-eighth Clause of the will of said Samuel P. Colt after the decease of said Roswell C. Colt to the share of net income to which he would be entitled if living; (2) If the preceding question is answered in the affirmative, whether the defendant Melba Colt is a member of said class; (3) If the two preceding questions are answered in the affirmative, whether the defendant Melba Colt's right to participate in such share of income commenced at the date of the decease of said Roswell C. Colt or at the date of her birth; (4) Whether the portion of the taxes on ratable property assessed on the 15th day of June, 1935, by the Town of Bristol and the City of Providence against the complainant, which is chargeable to the share of income payable under the Twenty-eighth Clause of said will to said Roswell C. Colt during his lifetime and after his decease to his surviving child or children, should be charged in its entirety to the income accruing after the decease of said Roswell C. Colt or apportioned between the income accruing prior to his decease and the income accruing after his decease; and if such taxes are to be apportioned, on what basis should they be apportioned?"

For the reasons that will presently appear, we will first consider the fourth question which immediately precedes and therefore requires no restatement at this point. The cities and towns of this state are authorized by General Laws 1923, c. 60, § 1, to assess taxes "as of the fifteenth day of June in each year at twelve o'clock noon, said date being known as the date for assessment of town taxes: Provided, however, that in any year in which said fifteenth day of June shall fall upon Sunday said valuation shall be made as of the sixteenth day of June at twelve o'clock, noon." The notice to be published by the assessors prescribed by section 6 of the same statute contains the following language: "All ratable real and personal estate will be taxed to the persons, co-partnerships or bodies corporate who own or hold the same (or who owned or held the same) at twelve o'clock noon, on said———day of June, A. D. 19—."

This statute does not define the period that a tax so assessed is intended to cover, nor does it fix a definite fiscal year, for the cities or towns. In the city of Providence, by ordinance, the fiscal year commences on October 1st. Ordinances of the City of Providence 1914, c. 20, § 1. There is no regulation or ordinance prescribing the fiscal year in the town of Bristol, where, by custom, it commences on February 1st.

Roswell C. Colt died May 1, 1935. Taxes on the property in the trust estate now in question were assessed to the complainant trustee as of June 15, 1935. The question for us to answer, as we understand it, is whether the surviving child or children of Roswell C. Colt, as remaindermen entitled to the income on June 15, 1935, should bear the entire burden of the one-third share of the tax assessed as of June 15, 1935, which was apportionable to the one share of the trust of which Roswell C. Colt was entitled to the income up to the time of his death, or whether it should be apportioned between the estate of Roswell C. Colt and his surviving child or children, and if so, in what manner.

The facts in the case at bar relating to the question of apportionment present the unusual feature that Roswell C. Colt, the life tenant, died before the day as of which the tax in question was assessed. In the reported cases on this point that have come to our notice, to which we will soon refer, the death of the life tenant occurred subsequently to the date for the assessment of the tax. Roswell C. Colt had no beneficial interest in any property held by the complainant under clause 28 of the will on June 15, 1935, the day as of which the tax was assessed. The trustee is apparently raising the issue of apportionment in the instant case because it is in doubt as to the yearly period, if any, that the tax assessed under the statute is intended to cover. This doubt is probably further increased by the difference in the fiscal...