Joseph C. Harlacker Et Al v. George G. Clark, Trustee U.W. Daniel W. Burrows

• Decision Date: 06 January 1948
• Citation: 56 A.2d 468,115 Vt. 261
• Parties: JOSEPH C. HARLACKER ET AL v. GEORGE G. CLARK, TRUSTEE U.W. DANIEL W. BURROWS ET AL
• Court: Vermont Supreme Court

56 A.2d 468

115 Vt. 261

JOSEPH C. HARLACKER ET AL v. GEORGE G. CLARK, TRUSTEE U.W. DANIEL W. BURROWS ET AL

Supreme Court of Vermont

January 6, 1948

October Term, 1947.

Trusts.

1. The testator's intent is the first consideration in construing a will.

2. Where a testator bequeathed a trust fund with directions that the income therefrom be used at the trustee's discretion for the benefit of a beneficiary during her natural life and at her death the principal be paid to named persons, held that any income not delivered to the first beneficiary in her lifetime but in the trustee's hands at her death should in the circumstances, be paid by the trustee to such beneficiary's administrator, and should not be treated as part of the principal.

APPEAL FROM PROBATE COURT on petition for a declaratory judgment. Hearing by Court, Windsor County Court, December Term, 1946 Cleary, J., presiding. Findings of fact were filed and judgment rendered. The defendant appealed. Affirmed in part reversed in part.

The judgment of the Windsor County Court is affirmed in part and reversed in part, and in lieu thereof it is adjudged and declared:

Roland E. Stevens for the defendant.

Paul A. Bourdon for the plaintiff.

Present: MOULTON, C. J., BUTTLES, STURTEVANT and JEFFORDS, JJ., and BLACKMER, Supr. J.

OPINION

BUTTLES

This is a petition originally brought to the Probate Court for the District of Hartford praying for a declaratory judgment determining whether accumulated income from a certain trust fund in the hands of the defendant trustee should be paid to the administrator of the deceased beneficiary or should constitute a part of the trust fund and be paid to the parties entitled to the principal thereof. The petitionees answered and also asked for affirmative relief. From the decree of the Probate Court the defendants appealed to County Court, where hearing was had, findings of fact filed and judgment rendered to the effect that the plaintiff Harlacker as administrator of the deceased beneficiary and her heirs were not entitled to recover the accumulated income in the hands of the trustee and further that the trustee and the heirs of the testator were not entitled to recover back income which had been paid by the trustee to the plaintiff while acting as conservator of the beneficiary during her lifetime. From this judgment the defendants come to this court on exceptions.

The trust in question was established by the will of Daniel W Burrows, deceased, and the decree of the probate court pursuant thereto which named the defendant Clark as trustee and directed him to set aside the sum of ten thousand ($ 10,000) dollars in interest-bearing securities, and directed that the income therefrom be used at the trustee's discretion for the benefit, maintenance and comfort of Mrs. H. G. O. Burrows, the widow of testator's brother Harrison, during her natural life, and at her death the principal be paid to the testator's legal heirs according to the Statutory Laws of Vermont. The will contains this restriction: "The income payable to any beneficiary under any trust hereunder shall not be assignable, nor shall the same be subject to or taken by or for the benefit of the creditors of any beneficiary under any proceedings, either voluntary or by process of law or equity." It appears from findings to which no exceptions were taken that for several years prior to October 2, 1930, the beneficiary had been dependent upon her niece, the wife of the plaintiff, and two other relatives for her comfort and support. On that date with the consent and at the instigation of the plaintiff Harlacker she was admitted to the State Infirmary at Howard, R. I. and remained there until her death on May 5, 1943. During her later years she was confined to a wheel chair and finally to her bed. When admitted to the State Infirmary she had no assets and was supported there without charge until her death. Harlacker was accustomed to send her $ 5.00 per week from the money received from the trustee. Her funeral expenses amounting to $ 598. were paid by Harlacker partly from his own funds and partly from funds received from sources other than the trustee. Her relatives have been reimbursed in part but not in full from funds received by the conservator from the trustee for the support furnished her prior to her being committed to the Infirmary.

The court finds that the income from the trust fund which Harlacker as conservator received from the trustee was used by Harlacker for the "benefit, maintenance and comfort" of Mrs. Burrows. Clark was appointed trustee by the Vermont court on October 1, 1930. Harlacker was appointed conservator by the Rhode Island court on March 11, 1934, and administrator of the life beneficiary's estate on September 24, 1943. Clark became skeptical of the use Harlacker was making of the money sent him and made no further remittances of income after December 31, 1936. He now has $ 2,538.38 of such income on deposit in a Boston bank, not drawing interest. No grounds for Mr. Clark's skepticism are found by the court.

The testator's intent is, of course, the first consideration in construing a will. President and Fellows of Middlebury College v. Central Pr. Corp. of Vermont, 101 Vt. 325, 143 A. 384. If the will in this case had given no discretion to the trustee it would seem that in the absence of other indication of a contrary intent by the testator, it would be assumed in accordance with the rule generally prevailing, that he intended that the income which at the time of the life beneficiary's death was available for distribution in the hands of the trustee should go to the beneficiary's estate. First Nat. Bk. and Tr. Co. v. Baker, 124 Conn. 577, 1 A.2d 283, 118 ALR 339, 351; Re Downer, 232 Iowa 152, 5 N.W.2d 147, 141 ALR 1463; Gorham v. Gorham, 99 Conn. 187, 121 A. 349; Seitzinger's Estate, 170 Pa. 500, 32 A. 1097, and other cases cited in annotation 141 ALR commencing at p. 1466.

In the present case the defendant's contention is, in effect that the discretion intended to be given is broad enough to...