Indus. Trust Co. v. McLaughlin

• Decision Date: 22 June 1922
• Docket Number: No. 550.,550.
• Citation: 117 A. 428
• Parties: INDUSTRIAL TRUST CO. v. MCLAUGHLIN et al.
• Court: Rhode Island Supreme Court

117 A. 428

INDUSTRIAL TRUST CO.

v. MCLAUGHLIN et al.

No. 550.

Supreme Court of Rhode Island.

June 22, 1922.

Bill in equity by the Industrial Trust Company, as administrator, against James McLaughlin and others for the construction of the will of John McLaughlin, deceased. Case certified. Decree directed construing the will.

Huddy, Emerson & Moulton, of Providence, for complainant.

Huddy, Emerson & Moulton, of Providence, for James McLaughlin and Elizabeth McLaughlin.

Cooney & Cooney, of Providence, for Helen McLaughlin.

Tillinghast & Collins and Harold B. Staples, all of Providence, for guardian ad litem of John, Maria, and Elizabeth McLaughlin, minors.

SWEETLAND, C. J. This is a bill in equity asking for the construction of certain provisions of the will of John McLaughlin, late of the town of Cumberland, deceased, and for instructions. The cause being in the superior court ready for hearing for final decree has been certified to this court for determination.

The will is inartistically drawn and was executed June 9, 1913. At that time the testator had living a wife, Elizabeth McLaughlin, and three minor children who are respondents here. In the superior court a guardian ad litem was appointed for said three minors. On January 25, 1915, another daughter was born to the testator, the respondent Helen McLaughlin, for whom in the superior court a guardian ad litem was appointed other than that for the other three minors. Each of these guardians argued before the court in support of the interests of their wards, and has filed carefully drawn briefs. Without adding a codicil to his will, the testator died on March 18, 1917. In said will the testator named his wife, Elizabeth McLaughlin, and his brother, James McLaughlin, as joint executors and trustees. These qualified as executors and served for a time. They then resigned, and the complainant trust company was appointed administrator de bonis non with the will annexed, has accepted the office, and qualified as such.

The first question as to which instructions are asked is as to what share, if any, the respondent Helen McLaughlin takes in the estate of the testator.

In the will the testator devises to each of his three children, as part of his bounty to them, a specifically designated parcel of land with a house thereon. In the superior court evidence was introduced from which it clearly appears that these pieces of real estate given to his children were of practically the same value; that after the birth of Helen he purchased another parcel, known as the Budlong farm, of about the same value as the other parcels; and that afterwards during his life, in the presence of his wife, the testator frequently referred to the Budlong farm as a home which he had provided for Helen. He never changed his will, however, or took other appropriate action to carry his purpose into effect. In the absence of a testamentary devise, or a conveyance or declaration of trust in writing signed by said John McLaughlin, Helen does not, by reasdn of the circumstances appearing in said evidence, obtain any special interest or share in the Budlong farm. Section 2, c. 253, Gen. Laws 1909.

After a certain legacy and certain devises, the testator provided by his will that onethird of all the rest, residue, and remainder of his estate should go to his wife "and the remaining two-thirds to my children, the childrens' share, however, to be held in trust." Before us the parties have discussed as to whether Helen shares in this gift to the testator's children or whether as to Helen the testator should be held to have died intestate in accordance with the provisions of section 22, c. 254, General Laws 1909, which is as follows:

"When a testator omits to provide in his will for any of his children or for the issue of a deceased child, they shall take the same share of his estate that they would have been entitled to if he had died intestate, unless it appears that the omission was intentional and not occasioned by accident or mistake."

The complainant avers in the bill that "no provision for said minor daughter Helen was made by said will or by codicil thereto." The language of the gift of two-thirds of the residue of the estate is not to the testator's children designated by name, nor does the testator in any other manner restrict the gift to his children alive at the time of making the will. Ordinarily such a gift as one 'to my children," without more, is construed as a gift to a class in the absence of an intention to be gathered from the will that it is one to individuals. The fact that at the time this will was made Helen was as yet unborn is not a circumstance which alone would indicate an intention to restrict the right to share in the residue to the testator's three children then alive. A will speaks and takes effect as if executed immediately before the death of the testator. That is the general rule recognized in our cases. Coggeshall v. Home for Children, 18 R. i. 696, 31 Atl. 694; Hazard v. Gushee, 35 R. i. 438, 87 Atl. 201; R. i. Hospital Co. v. R. i. Homeopathic Hospital (R. i.) 87 Atl. 177. Our statute also provides in section 6, c. 254, General Laws 1909, that every will shall be construed with reference to the real and personal estate comprised in it to take effect from the death of the testator, unless a contrary intention appears in the will. The gift to the testator's children of a share in the residue of his estate being immediately operative upon his death, the members of the class who come within the designation of "my children" are to be ascertained at that time, and the class includes all of the four children of the testator who survived him.

We answer the first question with regard to which instruction is sought by saying that the respondent Helen McLaughlin shares equally with her sisters and her brother in two-thirds of the residue of the estate under the provision of the sixth paragraph of the will.

By the second...