Indus. Trust Co. v. Flynn

• Decision Date: 09 August 1948
• Docket Number: No. 1850.,1850.
• Citation: 60 A.2d 851
• Parties: INDUSTRIAL TRUST CO. v. FLYNN et al.
• Court: Rhode Island Supreme Court

60 A.2d 851

INDUSTRIAL TRUST CO.

v.FLYNN et al.

No. 1850.

Supreme Court of Rhode Island.

Aug. 9, 1948.

Certified from Superior Court, Providence and Bristol Counties; Robert E. Quinn, Judge.

Bill in equity by the Industrial Trust Company, trustee under the will of Samuel Pomeroy Colt, deceased, against Theodora DeWolf Flynn and others for construction of certain portions of will of Samuel Pomeroy Colt, deceased, and for instructions relative to trusts therein established. The bill was certified to the Supreme Court.

Decree in accordance with opinion.

CONDON, J., dissenting.

Edwards & Angell, of Providence (Walter A. Edwards and Frederick Lippitt, both of Providence, of counsel), for complainant.

Hinckley, Allen, Tillinghast & Wheeler, Stuart H. Tucker, and Bruce M. Docherty, all of Providence, for respondent Russell G. Colt.

Greenough, Lyman & Cross, William B. Greenough, and R. Gordon Scott, Jr., all of Providence, for respondent Mary L. Gross.

Edward W. Day, of Providence (Gardner, Day & Sawyer, of Providence, of counsel), for respondent Melba P. Colt individually and as administratrix.

Charles R. Haslam, of Providence (Stephen F. Mullen, of Providence, of counsel), guardian ad litem of respondents Caldwell, Byron, and Melba Colt.

Edward L. Leahy, of Providence, for respondent Elizabeth Colt Wilson.

George Hurley and John W. Moakler, Jr., both of Providence, for respondents Edwin A. Barrows, Jr., Elizabeth L. Anthony, S. Reed Anthony, and LeBaron Colt Anthony.

Swan, Keeney & Smith, of Providence (Frank H. Swan, Jr., of Providence, of counsel), for respondent Thomas W. McCue.

Horace L. Weller, of Providence, for respondent William G. Nightingale, Jr., and guardian ad litem of respondents Barbara DeWolf Nightingale and William Greene Nightingale, 3rd, Silas Reed Anthony, Jr., Magdelaine Richmond Anthony, Bryan Anthony, and Robert Weeks Anthony.

Sayles Gorham, of Providence, guardian ad litem of respondents John Drew Miglietta, Samuel Colt Wilson, Dorothy Wilson, and Rodney Chipman Wilson.

Fred B. Perkins, of Providence (Perkins, Higgins & McCabe, Fred B. Perkins, and Eugene V. Higgins, all of Providence, of counsel), guardian ad litem of respondent Theodora DeWolf Flynn, and representative of contingent interests.

James O. McManus and Joseph W. Grimes, both of Providence, for respondent Joseph W. Grimes.

FLYNN, Chief Justice.

This is a bill in equity brought by the trustee under the will of Samuel Pomeroy Colt, late of Bristol, Rhode Island, for the construction of certain portions of the twenty-seventh and twenty-eighth clauses thereof and for instructions relative to the trusts therein established. All persons having possible interests in the income or principal of these trusts were made respondents, all minors were represented by the guardians of their estates or by a duly appointed guardian ad litem, and a representative of contingent interests of persons not in being or not ascertainable was also appointed by the court. A decree pro confesso was entered against each respondent who failed to appear and file an answer, and the cause, being ready for hearing for final decree, was then certified to this court for determination under General Laws 1938, chapter 545, § 7.

The following material facts are not disputed. Samuel Pomeroy Colt, the testator, executed his will on December 28, 1917 and died on August 13, 1921. The will was duly probated. He was survived by two sons, Russell G. Colt and Roswell C. Colt, and a brother, LeBaron B. Colt, and they constitute the first life tenants of the residuary trust involved in the twenty-eighth clause.

Each of these first life tenants had a child or children living at the testator's death. Russell G. Colt, a son, had three such children, namely Samuel Colt, Ethel B. Miglietta, and John Drew Colt. Roswell C. Colt, the other son, had one such child, namely Elizabeth Colt Smith. Subsequently he married Melba P. Colt and had three other children, namely, Caldwell Colt, Byron Colt, and Melba Colt, all of whom were born after the testator's decease. LeBaron B. Colt, the testator's brother, died on August 18, 1924, and he was survived by three such children, Theodora L. Barrows, Mary L. Gross, and Elizabeth L. Anthony, all of whom were married.

The questions here involved arise because of the death on July 28, 1946, of said Theodora L. Barrows, one of the three daughters who survived LeBaron, and therefore one of the three second life tenants of his share. She was survived by a son, Edwin A. Barrows, Jr., and by Theodora DeWolf Flynn (only child of Theodora Barrows McCue, deceased daughter of Mrs. Barrows), and by Barbara DeWolf Nightingale and William Greene Nightingale, III (only children of Barbara Barrows Nightingale, the other deceased daughter of Mrs. Barrows). All Mrs. Barrows' children were born during the testator's lifetime, and her two daughters died intestate after LeBaron's decease and during their mother's lifetime. None of Mrs. Barrows' grandchildren were born during the testator's lifetime.

The bill of complaint seeks instructions primarily as to the disposition of Mrs. Barrows' share of the surplus income from the trust in clause Twenty-seventh and her share of income and a proportionate share of the principal under the residuary trust in clause Twenty-eighth of the will.

Clause Twenty-seventh of the will established a special trust for the maintenance of the homestead and farm in Bristol ‘for and during the natural lives of said children and grandchildren until all but one of them shall have deceased,’ at which time said real estate will be conveyed to such last survivor. Certain other realty and one-half of the residue of his estate is also placed in trust to provide income, if necessary for such maintenance; and then comes the provision here involved, viz., ‘any surplus of such income to apply as provided in the Twenty-eighth clause of this Will with reference to the income of the residuary Estate to be held by my Trustee. And upon the termination of the trust hereinbefore expressed concerning my real estate in said Town of Bristol, said one-half of my residuary estate shall fall in and become a part of the other half of my residuary estate to be divided and distributed or held as provided in clause Twenty-eighth of this Will.’

Clause Twenty-eighth of the will 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 semiannually 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 questions propounded for our consideration are as follows: ‘(1) What...