Indus. Trust Co. v. Wilson

• Citation: 200 A. 467
• Decision Date: 30 June 1938
• Docket Number: No. 1315.,1315.
• Parties: INDUSTRIAL TRUST CO. v. WILSON et al.
• Court: United States State Supreme Court of Rhode Island

200 A. 467

INDUSTRIAL TRUST CO.

v. WILSON et al.

No. 1315.

Supreme Court of Rhode Island.

June 30, 1938.

[Copyrighted material omitted.]

Certified from Superior Court, Providence and Bristol Counties.

Bill in equity by the Industrial Trust Company, trustee, against Elizabeth Wilson and others for instructions relating to the construction of the twenty-eighth clause of the will of Samuel Pomeroy Colt, deceased. The bill was certified to the Supreme Court.

Decree in accordance with opinion.

Eliot G. Parkhurst and Edwards & Angell, all of Providence, for complainant. Chauncey E. Wheeler, of Providence (Hinckley, Allen, Tillinghast & Wheeler, Mason B. Merchant, and Isadore Paisner, all of Providence, of counsel), representative of contingent interests. Greenough, Lyman & Cross and William B. Greenough, all of Providence, for respondent Mary L. Gross. Walter V. Moriarty, of Providence, guardian ad litem for Samuel Colt Wilson. Charles R. Haslam, of Providence, guardian ad litem (Harry A. Tuell, of Providence, and John N. Regan, of New York City, of counsel), for Caldwell Colt and Byron Colt. Edward W. Day, of Providence, guardian ad litem for Melba Colt. Edward M. Brennan, of Providence, for S. Reed Anthony, and guardian ad litem for LeBaron Colt Anthony. George Hurley and John W. Moakler, Jr., both of Providence, for Theodora C. Barrows and Elizabeth L. Anthony, and Theodora Ledyard Barrows as administratrix d. b. n. c. t. a. of LeBaron B. Colt's estate. Robert P. Beagan, of Providence, for Edwin A. Barrows, Jr. Tillinghast, Collins & Tanner, Colin MacR. Makepeace, and Robert W. Hankins, all of Providence, for Barbara DeWolf Nightingale. Westcote H. Chesebrough, of Providence, guardian ad litem for Barbara Nightingale. Stockwell, Chace & Yatman and Edward A. Stockwell, all of Providence, for J. Edith C. Colt Peters and George A. C. Colt. Clifford A. Kingsley, of Providence, guardian ad litem for Patricia C., Joy B., and Blair A. Barrows, and Theodora DeWolfe Flynn.

CONDON, Justice.

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This bill in equity for instructions, relating to the construction of the twenty-eighth clause of the will of Samuel Pomeroy Colt, was originally before this court and duly heard on April 24, 1936. After hearing, this court rendered an opinion deciding one of the four questions certified to us by the superior court and remanding the cause to that court for further proceedings for the purpose of adding parties in interest before deciding the remaining three questions. See Industrial Trust Co. v. Wilson, R.I., 192 A. 821. This having been done, the cause was again certified to this court and these additional parties were given an opportunity to be heard on those questions. Some of them, by counsel or by their guardians ad litem, were heard, and the original parties were also given an opportunity to be heard a second time. There was thus a thorough hearing of all points of view after full and able arguments.

The three questions remaining to be answered are in the same form as they were when they were originally certified. For convenience we shall restate them here: "(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 the net income to which he would be entitled if living; (2) If the preceding question is answered in the affirmative, whether 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?"

Roswell C. Colt survived his father, Samuel Pomeroy Colt, who died August 13, 1921, at which time Roswell had one child, Elizabeth Colt now Elizabeth Colt Wilson. Later, in 1927, after the death of his first wife, Roswell married Melba C. Colt and, by her, he had three children, Byron Colt, Caldwell Colt, and Melba Colt, who was born on November 17, 1935, after the death of her father, which occurred on May 1, 1935.

The death of Roswell and the posthumous birth of Melba necessitated the filing of this bill by the trustee for instructions as to its duty in paying the income of the trust estate set up under the twenty-eighth clause of the will. This clause in full reads as follows: "All the rest, residue and remainder of my estate, real and personal, (meaning and intending thereby the one half of my residuary estate not set apart as provided in the preceding Twenty-seventh section of this Will), of which I shall die seized and possessed, or to which I shall be in any manner entitled, including any estate of which I shall have the power of appointment by will I give, devise and bequeath to said Industrial Trust Company and its successors in trust for the uses and purposes hereinafter expressed and declared of and concerning the same. That is to say: my Trustee shall make an inventory of all said rest, residue and remainder real and personal estate, and shall place values on the same and the respective parts thereof to the best of its skill and understanding; and my Trustee shall then divide said residuary estate into six equal parts or shares, each of which shall contain an equal proportion as near as may be of all bonds, shares of capital stock in corporations and other securities included in said residuary estate. One of said six parts or shares of said residuary estate shall be conveyed, transferred and made over, discharged of all trust, to my son Russell Griswold Colt, and one of said parts or shares shall be conveyed, transferred and made over, discharged of all trust, to my son Roswell Christopher Colt. One of said six parts or shares shall be conveyed, transferred and made over, discharged of all trust, to my brother LeBaron Bradford Colt. 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 LeBaron 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. And upon the decease of such child or children of my said sons and my said brother, as the same shall respectively happen, my Trustee shall convey, transfer and set over to the child or children of such deceased child or children, per stirpes and not per capita, his, her or their proportionate share of this trust estate, as an estate vested in fee simple, discharged of all trust. And in case of failure of the limitations and objects of the preceding trust, that" is to say, if either or both of my said sons or my said brother shall die leaving no child surviving, or if leaving child or children surviving, such last named child or children shall die leaving no child or children surviving him, her or them, as the case may be, then my Trustee shall convey, transfer and set over, discharged of all trust, the share or shares of said trust estate to which any such grandchild or grandchildren would have been entitled if living, to the person or persons who at the time of ascertaining such failure of the aforesaid objects of said trusts would have been my heir or heirs-at-law according to the statutes of descent of real estate then in force in the State of Rhode Island, if I had at that time died intestate, seized and possessed of said share or shares." (Italics ours.) The portion of the clause which we have italicized is the part concerning which a question has arisen requiring a construction by this court.

The respondent Wilson contends that the words "shall pay to the surviving child or children of such deceased son or brother" mean child or children surviving the testator. The respondents Melba P. Colt and the respective guardians ad litem of Caldwell Byron and Melba Colt, urge on the contrary that these words clearly mean the child or children surviving such deceased son or brother, that is, such child or children living at the decease of its father. The other respondents, according to their interests, range themselves on one side or the other of these two constructions. The complainant takes no position, since it is here asking for instructions as to whom it shall pay the deceased Roswell C. Colt's share of said trust income.

The respondent Wilson, in support of her contention, urges that a consideration of the testator's whole will discloses a general scheme of distribution of his estate which requires a construction of the clause under consideration as contended for by her. She points out that a construction such as contended for by the other respondents, Caldwell, Byron and Melba Colt, will be contrary to the intention of the testator as indicated or implied by such scheme and also will result in the ultimate gifts of principal in the twenty-eighth clause being declared void on the ground of remoteness.

With reference to this latter argument, we may say at the outset that we are concerned here only with the question as to whom the income is payable under the twenty-eighth clause. Neither the bill nor any of the answers filed by respondents in the superior court raises the question of, or specifically seeks any determination as to, the remoteness of any ultimate gift of the principal under said clause. We think it will be time enough for that question to be considered when it arises...