Indus. Trust Co. v. Pendleton

• Decision Date: 22 January 1945
• Docket Number: No. 1681.,1681.
• Citation: 40 A.2d 849
• Parties: INDUSTRIAL TRUST CO. et al. v. PENDLETON et al.
• Court: Rhode Island Supreme Court

40 A.2d 849

INDUSTRIAL TRUST CO. et al.

v.PENDLETON et al.

No. 1681.

Supreme Court of Rhode Island.

Jan. 22, 1945.

Case Certified from Superior Court, Washington County.

Bill in equity by Industrial Trust Company and another, executors, against Stuart Nicol Pendleton and others, for construction of a will. On certification to Supreme Court in accordance with Gen.Laws 1938, c. 545, § 7.

Decree in accordance with opinion.

Hinckley, Allen, Tillinghast & Wheeler and Stuart H. Tucker, all of Providence, for complainants.

Herbert W. Rathbun and Joseph R. Murray, both of Westerly, for Beatrice N. Pendleton.

Sisson, Fletcher, Worrell & Hodge and Paul H. Hodge, all of Providence, for Paul H. Hodge, guardian ad litem of James Monroe Pendleton and contingent interests.

CONDON, Justice.

This is a bill in equity for the construction of the will of James M. Pendleton, late of the town of Westerly, deceased. The cause being ready for hearing for final decree, the superior court for the county of Washington has, in accordance with General Laws 1938, chapter 545, § 7, certified it to this court for our determination.

James M. Pendleton died on May 18, 1940, leaving surviving him his wife Beatrice Nicol Pendleton, his son Stuart Nicol Pendleton, and his grandson James Monroe Pendleton, a minor, all of whom are now living and are parties in this cause. The executors of the will, Industrial Trust Company and Beatrice Nicol Pendleton, have brought this bill praying for a construction of the fourth clause of the will. However, Mrs. Pendleton, with the permission of the superior court, has entered her appearance individually in order to contend that she is entitled, under that clause, to the residuary estate absolutely in fee simple.

Brown University, the son and the grandson are respondents. Persons unascertained or not in being who may be interested in the estate have been made respondents and their interests are represented by a guardian ad litem who also represents the interest of the grandson. The son concedes the validity of his mother's contention while Brown University merely joins in the prayer of the bill without advancing any contention. Only the guardian ad litem contests Mrs. Pendleton's claim.

The controversy has arisen at this time because, the estate being ready for distribution, Mrs. Pendleton has refused to accept the distribution of the residuary estate subject to a gift over, in the event of her intestacy, to the Industrial Trust Company in trust for her son and his issue. The question thereby raised for our determination is: ‘Is Beatrice Nicol Pendleton, the widow of the said testator, entitled at the present time to distribution of said estate absolutely and in fee simple, or is she entitled to a life estate with power of disposition by will, or, if neither, to what estate is she entitled?’

Clause fourth of the will reads as follows:

‘All the rest, residue and remainder of my estate, both real and personal, of whatever nature and description and wherever situated, including property which I may hereafter become possessed of, I give, bequeath and devise unto my wife, Beatrice Nicol Pendleton.

‘If my wife, Beatrice Nicol Pendleton, shall die intestate or shall pre-decease me, then I give, bequeath and devise the remaining part of my estate to the Industrial Trust Company, a corporation duly created in the State of Rhode Island, having its principal office at Providence in said State and a Branch Office in Westerly, But In Trust Nevertheless for the following purposes, to wit:

‘To receive, hold, manage, sell, exchange, invest and reinvest the same and every part thereof in the manner hereinafter specified, and to collect, recover and receive the rents, issues, interest and income thereof, hereinafter called income, and after deducting the proper and necessary expenses in connection with the administration of the trust, to pay the same in quarterly installments unto my son, Stuart Nicol Pendleton, for and during the term of his natural life and upon his death to pay the same in the same manner to his living issue, if any, share and share alike, until they have all reached the age of twenty-five years, and then to convey and pay over to them, free from all trusts, the principal of said estate.’

The first sentence of the clause clearly gives to the wife a fee simple in the realty and an absolute gift of the personalty, unless elsewhere in the will a contrary intention appears. Knight v. Knight, 61 R.I. 187, 200 A. 431. Such a contrary intention to give less than the whole estate of which the testator was seized must appear distinctly and with reasonable certainty. Atkinson v. Staigg, 13 R.I. 725.

The testator, by the second sentence of the clause, has apparently attempted to dispose of the estate thus given to his wife, in the event she predeceased him or, having survived him, thereafter died intestate. Since the former event did not occur, the guardian ad litem has not contended that the testator's contemplation of it indicates an intention to limit the prior gift; and we do not think that it does. His sole contention is that the gift over, in the event of the wife's intestacy, does limit that gift to a mere life estate coupled with a power to dispose of...