Industrial Nat. Bank of Providence v. Dyer

• Decision Date: 13 March 1963
• Docket Number: No. 2941,2941
• Citation: 188 A.2d 909,96 R.I. 39
• Parties: INDUSTRIAL NATIONAL BANK OF PROVIDENCE, Trustee, v. George D. DYER et al. Eq.
• Court: Rhode Island Supreme Court

Page 909

188 A.2d 909

96 R.I. 39

INDUSTRIAL NATIONAL BANK OF PROVIDENCE, Trustee, v. George D. DYER et al.

Eq. No. 2941.

Supreme Court of Rhode Island.

March 13, 1963.

Hinckley, Allen, Salisbury & Parsons, Richard W. Billings, Jacques V. Hopkins, Providence, for complainant.

McElroy & Regan, Edward F. McElroy, James P. McElroy, Jr., Providence, for respondent George D. Dyer.

Johnson & Johnson, Walter Johnson, Martin Johnson, Providence, for respondents Florence, J. Sullivan, Lester E. Paine and Raymond Dyer.

Edwards & Angell, Stephen A. Fanning, Jr., Calvert C. Groton, Providence, for respondents St. Mary's Home for Children and Saint Elizabeth Home.

J. Joseph Nugent, Atty. Gen., Harold S. Moskol, Providence, Sp. Assistant.

ROBERTS, Justice.

This is a bill in equity for the construction of the will of Martha Taylor, late of the town of West Warwick, deceased, and for instructions to the trustee thereunder as to the distribution to be made of a portion of the corpus of the trust, the trust having terminated. After the cause was ready for hearing in the superior court for final decree, that court pursuant to the provisions of G.L.1956, § 9-24-28, duly certified the cause to this court for our determination.

The will was executed by the testatrix on November 11, 1948. She died on December 2, 1948, and the will was admitted to probate on December 8, 1948. The testatrix made therein several pecuniary bequests to specified individual legatees, three of these individual legatees being respondents in this cause, and one bequest to a religious institution.

Disposition of the residual estate is made in the fourteenth clause of the will wherein the residue is devised and bequeathed to the Industrial Trust Company of Providence in trust with direction that the net income thereof be paid over in quarterly installments 'to my daughter, Doris Manton Martin, for the period of her natural life.' There is also a provision therein authorizing the trustee in its discretion to make disbursements from the corpus of the trust on behalf of the testatrix's said daughter, and thereafter further provision is made for the distribution of the corpus at the time of the termination of the trust as follows: 'Upon the death of my said daughter, Doris Manton Martin, I direct my said Trustee to divide whatever may remain in my estate as follows: one-quarter (1/4) to Saint Mary's Home for Children, in North Providence, Rhode Island; one-quarter (1/4) to Saint Elizabeth Home of Providence, Rhode Island; and one-half (1/2) to be divided equally among my nieces and nephews then surviving, and to be discharged of its trust.'

Doris Manton Martin died on March 2, 1960, and with her death the trust terminated. It appears from the record that four of the nieces and nephews of the testatrix survived Doris Manton Martin. Three of those surviving were Florence Jillson Sullivan, Lester Earl Paine, and Raymond Dyer, hereinafter referred to as the respondents. A fourth nephew survived the beneficiary, namely, respondent George D. Dyer, hereinafter referred to as George D. Dyer, whose whereabouts was unknown at that time.

Thereupon the trustee, acting pursuant to the provisions of G.L.1956, § 18-6-2, petitioned the superior court for permission to pay into the registry of that court an amount of money which in its opinion would be due George D. Dyer, alleging in said petition its inability to locate him. The respondents opposed the granting of this petition and, filing an answer in the nature of a cross petition, prayed that the prayer of the trustee be denied and that a decree be entered ordering payment to them in equal shares of one half of the amount of the corpus of the trust remaining in the custody and possession of the trustee. In the course of this proceeding the superior court appointed a guardian ad litem to represent the interests of the nephew George D. Dyer. Through the efforts of the guardian ad litem George D. Dyer was located, and thereupon by agreement of the parties the petition of the trustee pursuant to § 18-6-2 was discontinued.

It is not disputed that George D. Dyer is a nephew of the testatrix. It appears from the evidence that he was born in Cranston in 1902 and lived there with his parents until the summer of 1920. At that time he left home without explanation and thereafter he never did communicate with any member of the family. It appears that he did not attend the funerals of his parents and that until February 1961 his whereabouts was completely unknown.

The trustee now brings the instant bill of complaint and alleges therein that respondents have made demand upon it in its capacity as trustee for payment of one half of the corpus of the trust remaining in its hands, and it further alleges that it is in doubt as to the proper construction to be given to that provision of the fourteenth clause of the will that relates to the distribution of the assets of the trust which remain in its hands upon the termination thereof. It thereupon asks the court for an instruction, first, as to whether George D. Dyer should share in the distribution of the one half of the corpus remaining in the trustee's hands with respect to which the will directs a distribution thereof 'equally among my nieces and nephews then surviving.' In the second inquiry the court is asked to instruct the trustee as to whether the cost of the proceeding undertaken pursuant to § 18-6-2 is to be charged against the general assets of the trust under the fourteenth clause of the will or whether it is to be charged against the one half of the remaining assets that under said clause are to be distributed to the nieces and nephews who survive the death of the beneficiary.

The respondents contend that the pertinent portion of the residuary clause of the will cannot be so construed as to include George D. Dyer among those entitled to share in the distribution of one half of the assets remaining in the corpus of the trust. In support of this position they argue that when the will is considered in its entirety, it discloses an intent on the part of the testatrix to give the remaining one half of the assets in equal shares to those of her nieces and nephews who were designated in prior provisions of the will as individual legatees and who survived the death of the beneficiary of the trust fund. In other words, they argue, as we understand them, that the testatrix did not intend to make a gift to a class in directing that the remaining half of the assets be distributed in equal shares among her nieces and nephews who survived her daughter.

George D. Dyer, on the other hand, contends that the pertinent provision of the residuary clause reveals a clear intention to make a gift to a class, the membership of which would be determined at the death of the beneficiary and who would then be entitled to share equally in one half of the remaining assets of the trust. He argues that there is nothing contained in the pertinent provision of the residuary clause that can be reasonably held to obscure such intention of the testatrix. By clear...