Lowell v. Lowell

• Decision Date: 09 October 1925
• Docket Number: Civil 2365
• Citation: 240 P. 280,29 Ariz. 138
• Parties: CONSTANCE S. LOWELL, Appellant, v. GUY LOWELL, as Trustee Under the Will of PERCIVAL LOWELL, Deceased, Appellee
• Court: Arizona Supreme Court

240 P. 280

29 Ariz. 138

CONSTANCE S. LOWELL, Appellant, v. GUY LOWELL, as Trustee Under the Will of PERCIVAL LOWELL, Deceased, Appellee

Civil No. 2365

Supreme Court of Arizona

October 9, 1925

APPEAL from a judgment of the Superior Court of the County of Coconino. J. E. Jones, Judge. Affirmed.

Mr Richard E. Sloan, Mr. C. R. Holton, Mr. Greig Scott and Mr Frank Harrison, for Appellant.

Messrs Cornick & Crable, for Appellee.

OPINION

ROSS, J.

This is an appeal from a probate order approving the validity of Dr. Percival Lowell's will. The appellant is Dr. Lowell's widow and only surviving heir, and, had he died intestate, would have inherited the entire estate. He died on November 16, 1916, at Flagstaff, Arizona, of which place the record shows he was at the time a resident. By his will, dated February 21, 1913, he gave to appellant $15,000, all his personal and houshold effects, authomobile, and an annuity of $60,000. Later by codicil this gift was changed to $175,000, personal and household effects, automobile, and forty-five per cent of the net incom of the estate; the latter being in lieu of the $60,000 annuity. The residuary estate he gave to William Lowell Putman in trust for the Lowell Observatory.

The estate appraised at approximately $2,000,000, and consisted principally of moneys, stocks, bonds, and securities; the only real property being a residence in Boston, Massachusetts, the land and premises on which the Lowell Observatory is situate near Flagstaff, Arizona, and a house and two lots in the said town of Flagstaff; the Arizona property being appraised at $32,500.

By the terms of the will, appellant and William Lowell Putnam wer appointed executors, without bond. The other named executors, without bond. The other named executor (William Lowell Putnam) did not qualify. The will was duly probated on appellant's petition and letters testamentary issued to her as the sole executor thereof. In due course, and on November 15, 1920, appellant filed her petition for a final distribution of the estate, and in said petition set up the claim that the trust in favor of the Lowell Observatory was illegal as in violation or our statutes against perpeuities, and asked that all of the remaining estate in her hands be distributed to her as the widow and sole heir at law of the deceased.

The appellee, Guy Lowell (who had under the terms of the will become the trustee), by proper pleadings resisted the prayer of the petition and insisted that the gift of the Lowell Obsesrvatory was for a charitable use and not in contravention of the laws of Arizona; and also pleaded that the question of the legality of the trust was Res judicata.

On July 8, 1924, the court made its order sustaining the contention of the trustee, and held that the will was operative and lawful. In the same order appellant was directed to file a supplemental final account and report, and, upon the approval of the estate to appellee, Guy Lowell, trustee. It is from that part of the order denying appellant's heirship to the whole estate and sustaining the legality of the trust in favor of the Lowell Observatory that the appeal is taken.

The appeal was attempted to be prosecuted by the appellant, both in her official capacity and as heir. Upon motion of appellee, the appeal by the executrix was dismissed on the ground that she was not aggrieved in her official capacity by the court's order. The appeal is therefore by her as heir.

Some question is made as to the appealability of the order because of its being made upon a hearing of the petition for final settlement and distribution. Under the statute, heirship may be established by proceedings before the final distribution is ordered (paragraphs 1032-1035, Civ. Code 1913), and ordinarily this method would be the natural one to follow. But in subsequent provisions the statute (paragraphs 1036-1039) confers jurisdiction upon the court to determine heirship upon the hearing of petition for final distribution. It seems clear enough that the order sustaining the trust in favor of the Lowell Observatory, and denying appellant's heirship to the residuary estate, was appealable.

We pass to a consideration of the question of the validity of the trust. If is is valid the order was correct; otherwise, erroneous.

It is the contention of the appellant that the will as written must be construed; that, while the testator does not say therein, in so many words, that the Flagstaff realty upon which the observatory is situate must be kept by the trustee in perpetuity and maintained as the permanent and perpetual home of the observatory, a reasonable, fair, and just construction thereof inevitably leads to that conclusion. On the contrary, the appellee insists that the will is not subject to construction at all; that it is written in language so clear and plain of meaning that the intent of the testator cannot be mistaken, and that no invoke rule of construction is such case would be an unheard of proceeding.

The correctness of the conclusions drawn by the parties depends upon the validity of their premises. If the will is ambiguous, and not reasonably susceptible of more than one interpretation and that interpretation may be gathered from the instrument itself, its utterance must be accepted by the courts. And this is so, even though it may defeat the will of testator, a fortiori, if it results in carrying out his intention. Although we have already given a summary of Dr. Lowell's will, because of the respective contentions, as also because of its brevity, its preciseness of expression and perspicuity, we set it out, omitting informal parts and two of the codicils which are unimportant in the consideration of the case:

"I Percival Lowell, of Flagstaff, Arizona, make this my last will and testament.

"First. I appoint my wife, Constance S. Lowell, and my brother-in-law, William Putnam, executors, and desire that no bonds be required of said executors or of any administrator with the will annexed, or of any trustee under this will.

"Second. I authorize my executors to sell any property, real or personal and household effects and my automobile.

"Third. I give to said Constance S. Lowell the sum of one hundred and fifty thousand ($150,000) dollars and all my personal and houseold effects and my automobile.

"Fourth. All the rest and residue of my property I give to my brother-in-law, William Lowell Putnam, to be held, subject to the provisions hereinafter made for my wife, in trust for the Lowell Observatory. The property shall be invested. Ten (10) per cent of the net income shall be added yearly to the principal, and the balance of the net income shall be used for carrying on the study of astronomy, and especially the study of solar system and its evolution, at my observatory, at Flagstaff, Arizona, and at such other places as may from time to time be convenient.

"In addtion to my observatory at Flastaff, and except as hereinafter provided for the benefit of my wife, not exceeding three (3) per cent of the capital of the original trust fund and its accretions and the accumulations resulting from the addition of ten (10) per cent of te annual income as aforesaid shall be kept invested in real estate, but nothing herein shall prevent the trustee from investing income in real estate to any amount, nor from receiving additional sums of money from othe sources to be invested in real estate, or otherwise.

"The trustee shall also have full control of the management of the trust and shall have power to appoint, select and discharge the director and all other employees and agents of the observatory, but I hope that Dr. V. M. Slipher will be appointed the first director after my decease, and that Mr. C. O. Lampland will suceed him.

"Each trustee shall appoint his own successor within a week, or as soon as posible, after his accession to his office, in order that no failure of a regular nomination may take place. This appointment of his successor shall be made by means of a written instrument to be delivered to the American Academy of Arts and Sciences, which they shall open after the decease or resignation of the trustee who delivered it to them. The trustee may at any time, and as often as he sees fit, revoke his former appointment and take back the aforesaid instrument, substituting another in its place. He may also nominate his successor in his will if he please so to do; and in case of a difference in the person nominated in the above-mentioned instrument, the individual nominated by the instrument last executed shallbe his successor. In selecting a successor I hope that preference will be given to a made descendant of my immediate family if a suitable one exists. A trustee may resign by written instrument delivered to said American Academy of Arts and Sciencee.

"In case of a vacancy occuring in the office of trustee which has not been filed as aforesaid, a trustee shall be appointed in a written instrument delivered to said academy by the oldest male descendant of my father, Augustus Lowell, then living, who may appoint himself or any other qualified person.

"The trustee for the time being shall have all the rights, titles and powers and be subject to all the duties herein given to or imposed upon the original trustee.

"Fifth. The Lowell Observatory shall at no time be merged or joined with any other institution.

"Sixth. Provided, however, that during the life of my said wife she shall have the right to occupy my house numbered 11 West Cedar street and 102 and 104 Mount Vernon street, Boston, Massachusetts, rent free during her life, and shall receive from the above trust an annuity of sixty thousand ($60,000) dollars per year, and in case said house is sold shall be entitled to a corresponding...