Industrial Nat. Bank of R. I. v. Austin

• Decision Date: 03 May 1966
• Docket Number: No. 1-82,1-82
• Citation: 100 R.I. 697,219 A.2d 389
• Parties: INDUSTRIAL NATIONAL BANK OF RHODE ISLAND as Trustee u/w of Warren R. Fales v. Carrle E. AUSTIN et al. C.Q.
• Court: Rhode Island Supreme Court

Page 389

219 A.2d 389

100 R.I. 697

INDUSTRIAL NATIONAL BANK OF RHODE ISLAND as Trustee u/w of Warren R. Fales v. Carrle E. AUSTIN et al.

C.Q. No. 1-82.

Supreme Court of Rhode Island.

May 3, 1966.

Hinckley, Allen, Salisbury & Parsons, Stuart H. Tucker, Providence, for complainant

Eugene A. Liberati, Providence, Hale & Dorr, Frederick G. Fisher, Jr., Martin S. Kaplan, Boston, Mass., for respondents Carrie R. Austin and Arthur V. Fales.

Edwards & Angell, Bancroft Littlefield, Providence, for respondent John Richmond Fales.

Edwards & Angell, William H. Edwards, John H. Blish, Providence, for respondent Harriet Fales Falk.

POWERS, Justice.

This is a bill in equity brought by the complainant as trustee under the will of Warren R. Fales, late of East Providence. It prays for construction of the third clause of the will and for instructions thereunder. When the cause was ready for hearing for final decree in the superior court it was certified to this court in accordance with the provisions of G.L.1956, § 9-24-28.

All the necessary parties are of full age, sui juris, and having been served as respondents entered their appearances and submitted the cause on an agreed statement of facts. For convenience we will hereinafter refer to Carrie E. Austin and Arthur V. Fales as the respondents.

It is established in the agreed statement that Warren R. Fales executed his last will and testament on July 1, 1919 and subsequently executed a codicil thereto on March 28, 1923. It substituted the instant complainant as executor of and trustee under the will for the originally-named fiduciary. See appendix I.

On January 15, 1924, however, the testator executed a second codicil which respondents contend is relevant in determining the intention of the testator, their grandfather. See appendix II.

The stipulation further establishes that at the time the will was executed the testator had two sons, Harry Lee Fales and LeRoy Atherton Fales, and a granddaughter Harriet Lee Fales, Harry's daughter. She will hereafter be referred to as Harriet. Further, LeRoy was married to Annie L. Fales, nee Dukehart. They had no children when the will was executed. Subsequently, however, a son Samuel Fales was born on December 9, 1921, who lived only three days. His mother died shortly thereafter, on January 8, 1922.

The third clause of the will gives, devises and bequeaths the residuary estate to the executor as trustee and, after making the usual provisions for administering the trust, reads in pertinent part as follows:

'(b) After the payment of my debts as provided in section (a) hereof, the remaining net income shall be paid to my sons LeROY ATHERTON FALES and HARRY LEE FALES and my granddaughter, HARRIET LEE FALES, in the following proportions; one-half to said LeROY ATHERTON FALES; one-quarter to said HARRY LEE FALES, and one-quarter to said HARRIET LEE FALES; said payments to be made at quarterly periods as nearly as possible and to continue during the lives of said LeROY ATHERTON FALES, HARRY LEE FALES, and HARRIET LEE FALES.

'(c) In the event of the death of said LeROY ATHERTON FALES leaving children by his present wife, Annie L. Fales, and HARRY LEE FALES or HARRIET LEE FALES surviving the death of said LeROY ATHERTON FALES, then the share of the net income '(d) At the death of HARRY LEE FALES, HARRIET LEE FALES surviving at the time of his death, then the share of the net income payable to said HARRY LEE FALES provided for in section (b) hereof, shall be paid to the said HARRIET LEE FALES for her life.

payable to said LeROY ATHERTON FALES, provided for in section (b), shall be paid to his children in equal shares during the continuance of this trust, and, if there are no surviving children of LeROY ATHERTON FALES at his decease, then all of his said share of the income shall be paid to said HARRIET LEE FALES

'(e) If said HARRIET LEE FALES LEE FALES. at her death, HARRY LEE FALES surviving her death, then the share of the income payable to said HARRIET LEE FALES provided for in section (b) hereof, shall be paid to said HARRY LEE FALES for his life, and if said LeROY ATHERTON FALES alone survive the death of HARRIET LEE FALES without her leaving children surviving her death as aforesaid, then the share of income payable to said HARRIET LEE FALES provided for in section (b) hereof, shall be paid to said LeROY ATHERTON FALES during his life.

'(f) At the death of HARRY LEE FALES, and LeROY ATHERTON FALES and HARRIET LEE FALES, the corpus of the trust property and any undivided income thereof, shall be conveyed, transferred and paid over absolutely and in fee simple per capita and not per stirpes to the children of HARRIET LEE FALES and LeROY ATHERTON FALES by his present wife, Annie L. Fales; and in the event of there being no children of either said LeROY ATHERTON FALES, by his present wife, Annie L. Fales, or children of said HARRIET LEE FALES, then said trust property above described is to be conveyed, transferred and paid absolutely and in fee simple to JOHN RICHMOND FALES, son of Jerome Richmond Fales and Elenora Bailey Fales.'

It is further agreed that the testator died October 7, 1924, survived by his son Harry, his granddaughter Harriet, and his son LeRoy who had remarried after the death of his wife Annie L. Fales. Harry died May 22, 1962 and thereafter his daughter Harriet received his share of the income from the trust, as provided in paragraph (d) of the third clause. LeRoy died on November 21, 1964 survived by a son Arthur V. Fales and a daughter Carrie Fales Austin, herein referred to as the respondents. They were born to LeRoy and Dorothy G. Fales whom LeRoy had married after the death of Annie.

Thereupon, Harriet claimed the right to receive LeRoy's share of the income, there being no surviving children of the union between LeRoy and Annie L. Fales. However, respondents also claim the income which their father had been receiving. The trustee, being in doubt as to its obligation under the trust, commenced the present proceedings, and praying for construction of the will specifically asks the following question: 'Under the provisions of said Will, should your Complainant pay the one-half share of the net income to which the said LeRoy Atherton Fales was entitled during his lifetime to the said Harriet Fales Falk during her lifetime, or to the said Carrie E. Austin and Arthur V. Fales in equal shares until the termination of said trust?'

The uncertainty of the trustee's obligation, as evinced by the question posed, arises out of the use of certain language employed by the testator in making his will and the effect thereon of the two codicils. The respondents contend that they, being children of LeRoy Atherton Fales living at his death, are entitled to the income that he was receiving under the terms of paragraph (c) of the third clause of the will.

This contention, however, is sharply contested by Harriet who argues that the qualifying language, 'leaving children by his present wife, Annie L. Fales,' was intended to embrace only children born to LeRoy and Annie; that the only child of that union having predeceased his father, LeRoy did not leave any child eligible to succeed him as a life tenant; and consequently that LeRoy's share of the income is payable to her for life.

In refutation of this position, however, respondents argue that the addition of the name 'Annie L. Fales' is meaningless as being redundant or descriptio personae; and that the preceding words,' 'by his present wife,' are important for the reason that the execution of the second codicil constituted a republication of the will, citing Merrill v. Boal, 47 R.I. 274, 132 A. 721, 45 A.L.R. 830, and DeMarco v. D'Errico. 87 R.I. 117, 138 A.2d 830.

We are reminded that the second codicil was executed after LeRoy's marriage to Dorothy Gardiner Fales, so that with republication of the will respondents fall within the designation of 'children by his present wife * * *.' We are unable to agree.

The primary and well-settled rule of testamentary construction is to ascertain the testator's dominant intent from the will as a whole and give effect thereto, unless it is contrary to some established principle of law. Smith v. Powers, 83 R.I. 415, 117 A.2d 844; Rhode Island Hospital Trust Co. v. Huntoon, 94 R.I. 474, 181 A.2d 614. Clearly, in the instant cause the testator expressed an intention in paragraph (c) of the third clause of his will to make the income which LeRoy had been receiving in accordance with the provisions of paragraph (b) payable only to grandchildren born of the union of LeRoy and his wife Annie, should any such children survive their father. This event not occurring, the income would be payable to Harriet, provided she survived her uncle LeRoy. Any other construction would require an ignoring of the ordinary meaning one would naturally import to the phraseology employed by the testator.

Having reached this conclusion, it follows that with the death of Annie the right to the income at the death of the testator vested in Harriet subject only to the condition that she should survive LeRoy. Such was the provision for distribution of LeRoy's income when the testator executed his first codicil in March 1923 and substituted the present complainant for the Slater Trust Company as executor and trustee. The manner in which his largesse would be distributed under the circumstances prevailing when this codicil was executed was known to the testator and, so knowing, he expressly included in said codicil a ratification of all of the provisions contained in his will, save that of the named fiduciary.

But, respondents stress, when the second codicil was executed on January 15, 1924, LeRoy was then married to Dorothy Gardiner Fales and Dorothy thereby became 'his present wife' within the meaning of paragraph (c) of the third clause of the will. The respondents, being children born to LeRoy and Dorothy, contend that they qualify for the income paid...