Jorge v. da Silva

• Decision Date: 20 April 1966
• Docket Number: No. 1-83,1-83
• Citation: 218 A.2d 661,100 R.I. 654
• Parties: Manuel F. JORGE, Ex'r, v. Antonia O. G. da SILVA et al. C.Q.
• Court: Rhode Island Supreme Court

Page 661

218 A.2d 661

100 R.I. 654

Manuel F. JORGE, Ex'r, v. Antonia O. G. da SILVA et al.

C.Q. No. 1-83.

Supreme Court of Rhode Island.

April 20, 1966.

Dominique S. Pavou, Providence, for complainant.

SaoBento & SaoBento, Antonio SaoBento, Jr., East Providence, for respondent Antonia O. G. da Silva.

Norman F. Smith, Tiverton, Francis J. Carreiro, Fall River, Mass., for respondents Asil de Infancia Desvalida and Asil de Mendicidade da Horta.

JOSLIN, Justice.

This bill in equity for the construction of the last will and testament of Jose A. F. da Silva, late of the city of Providence, deceased, was brought by the executor thereunder. The respondents, the legatees and davisees under the will, are Antonia O. G. da Silva, the testator's widonw, Asil de Infancia Desvalida da Horta and Asil de Mendicidade da Horta. When the cause was ready for the entry of a final decree in the superior court it was certified here pursuant to G.L.1956, § 9-24-28, for our determination.

From the agreed statement of facts which was filed in the superior court it appears that the testator, several years after the death of his first wife, went to the Azore Islands where he married the respondent Antonia in July 1958. About a month later he returned to the United States and Antonia, who followed him to this country in June 1959, resided with him in Providence until his death at the age of eighty-four in June of 1964. His will dated August 28, 1959 was duly probated, the executor has filed a final account which shows a personal estate in his possession consisting of negotiable securities and money on deposit in banks of a value of approximately $17,000, and a determination of whether that account shall be allowed awaits our decision on this bill for the construction of the decedent's will Additionally, at his death the testator was seized and possessed in fee simple of a parcel of real estate with a three-family dwelling house situated thereon. The real estate is unencumbered and is valued at $12,000. One of the tenements is occupied by the respondent widow and the monthly rental income from the other two is $100.

In the bill of complaint the executor in substance asks us to determine whether he should deliver possession of the personal estate to the widow or whether instead he should hold it in trust and pay the income therefrom to the widow and upon termination of her estate deliver the corpus to the other respondents as remaindermen.

The will is short and its provisions few. After detailing what funeral arrangements should be made and directing that masses be said for the repose of his soul, the testator bequeathed $2,000 outright to his wife if living at his death, and in addition by clause Five gave her what, at least as to the personalty, the parties agree is a life estate defeasible or determinable upon marriage. That clause reads as follows:

'Five: I give, devise and bequeath to my wife, Antonia O. G. da Silva for and during her lifetime and while unmarried all the rest and residue of my estate, personal or real estate and upon her death or remarriage then I give, devise and bequeath all the said rest and residue of my estate to Asil de Infancia Desvalida da Horta, Horta, Fayal, Ilhas dos Acores, AND to Asil de Mendicidade da Horta, Fayal, Ilhas dos Acores, Portugal, one half to each for their general purposes.'

The only other provision of the will, save for those wherein he provided that the foregoing provisions for his wife should be in lieu of dower and for the appointment of an executor and the employment of counsel for the estate, is clause Seven which provides:

'Seven: Upon the death or remarriage of my wife, whichever occurs first, my executor shall sell and dispose of all my estate, reduce the same to cash and send the proceeds to the named beneficiaries.'

The initial question is whether the widow may entrench upon or dispose of the principal of the personal estate. On that issue it is fundamental that a power to use or consume principal cannot exist in favor of a prior taker uner a will unless it either has been specifically conferred, or can be reasonably inferred from the testamentary language as being necessary to carry out the testator's intention. Because this will lacks an explicit provision permitting the widow to use the principal, her right to do so, if it exists at all, must be read into the will. Courts are willing to do this if they can find that the testator intended to permit the use of the corpus and we will construe this will in that manner if its language discloses a testamentary plan to allow the widow the right or power to consume the principal for her own benefit.

Generally, where a dispositive design to permit encroachment has been found it has been inferred from language used by the testator which indicated that he expected that the gift over would diminish before being paid over to the successor interests, or conferred upon the first taker broad dominion and control over the gift, or provided that the corpus should be used for the maintenance, comfort, care and support of the life tenant. The cases are collected at 108 A.L.R. 542.

Where a will provides, for example, that the gift over after the life estate is of 'what may be left' or of 'all that may remain and be left' or of 'whatever remains' or 'may' or 'shall remain,' the courts have said that the testator anticipated a possible diminution of the corpus and in the absence of any language or circumstances indicating a contrary intent have sometimes inferred that the testator intended that the first taker could use or consume the corpus at the expense of the remaindermen. Seaward v. Davis, 198 N.Y. 415, 91 N.E. 1107; Young v. Hillier, 103 Me. 17, 67 A. 571; Brennan's Estate, 324 Pa. 410, 188 A. 160; Harris v. Knapp, (21 Pick. 412) 38 Mass. 412; Kimball v. New Hampshire Bible Society, 65 N.H. 139, 23 A. 83-85; In re Trust Under Will of Cosgrave, 225 Minn. 443, 31 N.W.2d 20, 1 A.L.R.2d 175.

This court reached the same result in Pierce v. Simmons, 16 R.I. 689, 19 A. 242, where the gift over was of 'whatever of my said estate * * * heretofore given, devised, and bequeathed to my wife * * * that shall or may remain at her death, shall go to and be the property of my sister * * *.' (Italics ours.) Our rationale was that the language 'whatever * * * shall or may remain' following the gift of the life interest was used by the testator not with any 'technical purpose,' but with an intention limited only to insuring that any remnant of the estate that there might be after his widow's death should go to the interest in remainder.

The same question came to us again in Billings v. Gladding, 58 R.I. 218, 192 A. 216. There the gift, which included both real estate and personal property, was 'to my husband George Drown Gladding * * * and after his decease, the remainder to my niece Mary Louise Billings * * *.' We distinguished between the real estate and the personal property and as to the realty we gave to the word 'remainder' its technical significance and found that the husband had a life estate and the niece a remainder in fee. When it came to the personal property, however, we followed Pierce v. Simmons, supra, and giving to the word 'remainder' its 'ordinary meaning' which we said was 'something remaining or left over,' we held that the husband had 'full power to use and dispose of it in his lifetime, but with the limitation that, if any remained at his decease, it was to go to Mary Louise Billings.'

Typical of the cases where a gift for the support, care and maintenance of the first taker has been the basis for a holding that the principal may be consumed before it reaches the remainderman is Knight v. Knight, 61 R.I. 187, 200 A. 431. There, in addition to other language evidencing a primary purpose to provide for the life tenant at the expense of the remainder interest, the will also provided that the first taker, the testator's wife, could use 'all she desires or needs for her maintenance, or care * * *' with remainder over. In substance, predicated both on the quoted as well as other language in the will, we found a clearly manifested dispositive intention to make the wife's needs for maintenance and care a primary charge upon the residue even though to do so might partially or totally destroy the...