MacDonald v. Manning

• Citation: 239 A.2d 640,103 R.I. 538
• Decision Date: 11 March 1968
• Docket Number: No. 114-A,114-A
• Parties: Dorothy S. MacDONALD v. Edward P. MANNING, Trustee et al. ppeal.
• Court: United States State Supreme Court of Rhode Island

Page 640

239 A.2d 640

103 R.I. 538

Dorothy S. MacDONALD v. Edward P. MANNING, Trustee et al.

No. 114-Appeal.

Supreme Court of Rhode Island.

March 11, 1968.

Jordan, Hanson & Curran, Providence, William A. Curran, Providence, of counsel, for plaintiff

Albert B. West, Providence, Herbert F. DeSimone, Atty. Gen., W. Slater Allen, Jr., Sp. Asst. Atty. Gen., for defendants.

Frederic A. Charleson, guardian ad litem, Edmund J. Carberry, Jr., guardian ad litem, Providence.

Marvin A. Brill, Providence, for persons in military service.

OPINION

PAOLINO, Justice.

This cause was certified to this court by the superior court under G.L. 1956, § 9-24-28, as amended, for the construction of the will of Philip G. Harris, late of the town of Burrillville, and instructions to the trustees thereunder. The late Mr. Harris died on May 15, 1962, leaving a will dated May 9, 1962. It is represented that all interested persons are parties defendant. Duly appointed representatives appeared for persons not in being or not ascertainable who have or may have an interest or who may be in the military service. Marilyn H., Suzanne S., and Clayton B. Wentworth, minor grandchildren of the testator and named defendants, are represented by a guardian ad litem. The state is represented by the attorney general.

The testator named defendant, Edward P. Manning, executor of his will and directed him to pay all his funeral expenses and just debts. He made a bequest to his daughter, Mary Ann Wentworth, of the family silver and the portraits of her husband and herself and stated that he was purposely excluding his daughter, and her children,

'* * * except as hereafter provided, from any other share in my estate inasmuch as I feel that she and her family are quite self-sufficient and I am sure will always live comfortably.'

He then created two separate trusts. The pertinent portions of the will read as follows:

'Third: I hereby bequeath to my daughter, Mary Ann Wentworth, the family silver and the portraits of her husband and herself and I purposely exclude my daughter, and her children except as hereafter provided, from any other share in my estate inasmuch as I feel that she and her family are quite self-sufficient and I am sure will always live comfortably.

'Fourth: I give, devise and bequeath that portion of land with all buildings and improvements thereon, situated in the Town of Burrillville and consisting of approximately twenty two (22) acres with a dwelling house thereon, standing in my name in the Land Evidence Records in said Town of Burrillville, to Herbert L. Perry of Scituate, Rhode Island and Edward P. Manning of Cumberland, Rhode Island, as Co-Trustees, to have and to hold unto them, the said Herbert L. Perry and Edward P. Manning, and their successors in trust, but in special trust, however, upon the following terms and conditions:

'A. I direct that my trustees shall permit my former secretary, Dorothy MacDonald of Woburn, Massachusetts, so long as she shall live, to reside in and occupy the premises described hereinabove namely, my dwelling house and the twenty two (22) acres, more or less, appurtenant thereto, and to use all household furniture and utensils, carpets, linens, plates, pictures, books, and other articles of every kind which shall, at the time of my death, be therein or thereon or ordinarily used in connection therewith, without paying any rent or other compensation therefor, except as hereinafter provided: provided that in the event she does not desire to live upon said premises then this clause shall become ineffective.

'B. Upon the decease of the said Dorothy MacDonald or in the event she has sooner removed from the premises described in this said trust, then the children of my daughter then living either collectively or individually may reside upon said premises for the rest of their natural lives: Provided, however, that said children shall give notice in writing within six (6) months of notification by the said trustees of the availability of said premises for their residence, of their desire to reside upon said premises and in the event that none of my daughter's children desire to live upon said premises or in the event any or all of them do live upon said premises and then decide not to live upon said premises, then Clause C hereinafter set forth shall become effective.

'C. When Clause B becomes ineffective, the trustees are to convey, within six (6) months, to the State of Rhode Island in fee simple, the premises described in this trust and said deed shall contain the following language: 'This conveyance is made for the express purpose of creating a charitable trust with fee in the State of Rhode Island for the benefit of the fire wardens and fish and game wardens and their staffs in the Woonsocket, North Smithfield, Burrillville and Smithfield areas and they may use said premises either for the purpose of a residence for fire wardens and fish and game wardens as aforesaid or for a meeting place for fire wardens and fish and game wardens as aforesaid.'

'Fifth: I hereby give, devise and bequeath my shares of stock in Buck Hill Forest, Inc., a Rhode Island Corporation, to Edward P. Manning and Herbert L. Perry as Co-Trustees, to have and to hold unto them, the said Edward P. Manning and Herbert L. Perry, and their successors in trust, but in special trust, however, upon the following terms and conditions:

'A. I direct that my trustees shall use the income of this my second trust created by this Will to pay the taxes and expenses of operation and upkeep of the premises described in the first trust created by this Will.

'B. To transfer for One $1.00 Dollar consideration in each instance, the legal and equitable title to three (3) shares of stock of said Buck Hill Forest, Inc. to Dorothy MacDonald, and to transfer for One $1.00 Dollar consideration in each instance, the legal and equitable title to three (3) shares of stock of said Buck Hill Forest, Inc. to Herbert L. Perry, and to transfer for One $1.00 Dollar consideration in each instance, the legal and equitable title to three (3) shares of stock of said Buck Hill Forest, Inc. to Edward P. Manning, once a year for five (5) consecutive years, said years to commence with the year of my death. The stock so transferred shall not be subject to any of the provisions of this Will.

'C. Said trustees are to have sole authority and discretion regarding the voting rights of said stocks so held by them.

'D. In the event that said corporation is liquidated or sold the proceeds of said sale are to be used by the trustees in their absolute discretion for the purposes as outlined in this trust.

'E. Upon the completion of the first trust described herein, namely, at the time of the trustees deed to the State of Rhode Island, of the land described in the first trust, this second trust shall cease and the trustees are directed to sell said stock so held by them to the corporation at the book value and in the event said Buck Hill Forst, Inc. does not desire to purchase said stock, then said trustees are to vote to liquidate said corporation and the proceeds of said stock in either event shall be paid to the State of Rhode Island for the purpose of upkeep and maintenance of the premises described in the first trust herein.

'Sixth: I hereby give, devise and bequeath all shares of stocks and securities which I have not otherwise disposed of by this Will or on the face of such stock, to my said secretary. Dorothy MacDonald with the express condition that the principal and income be used to defray the expenses and maintenance of the premises described in the first trust herein, I being well aware that the Buck Hill Forest Inc. corporation will perhaps not realize any income for a number of years.

'Seventh: All the rest, residue and remainder of my property whether real, personal or mixed, I hereby give, devise and bequeath to my former secretary and good friend, Dorothy MacDonald.'

After the testator's death, his will was admitted to probate and letters testamentary were issued to the named executor. During the course of the probate proceedings the executor learned that the liquid assets of the estate were not sufficient to meet the obligations of the estate. He was therefore required to petition the probate court for permission to sell the assets to pay the outstanding debts. The assets sold pursuant to the decree of the probate court included the land and dwelling which, along with the contents, constituted the corpus of the trust created by paragraph Fourth. After payment of the outstanding debts and probate expenses, the executor had a balance of $11,556.74 left over from the proceeds of the sale of the assets. Upon completion of the probate proceedings he paid over the balance to himself and his co-trustee, in their capacities as trustees under the testator's will.

The plaintiff, who was the testator's personal secretary, is one of the beneficiaries of the paragraph Fourth trust and also a specific legatee and residuary legatee under the will. Although set out in the statement of facts, paragraph Sixth of the will is not before us because the testator did not leave any shares of stock or securities at the time of his death. The forced sale of the corpus of the paragraph Fourth trust precipitated the filing of the instant complaint by the plaintiff. She alleges therein that defendants, Marilyn H., Suzanne S., and Clayton B. Wentworth, are the only children of the testator's only daughter; that since the real estate was disposed of, neither she nor the grandchildren are entitled to anything under the terms of the paragraph Fourth trust; that the trust created under paragraph Fourth, clause C, violates the rule against perpetuities and is therefore invalid; that the paragraph Fifth trust is conditioned upon the validity of the paragraph Fourth trust; and that, in the circumstances, as residuary legatee, she is entitled to the funds held by the trustees.

Answers...