Manufacturers Nat. Bank of Troy, N. Y. v. McCoy, 1-72

• Decision Date: 14 July 1965
• Docket Number: No. 1-72,1-72
• Citation: 212 A.2d 53,100 R.I. 154
• Parties: MANUFACTURERS NATIONAL BANK OF TROY, NEW YORK, as Trustee u/w of Daisy McC. Clarke v. Anna Ryan McCOY et al. C. Q.
• Court: Rhode Island Supreme Court

Page 53

212 A.2d 53

100 R.I. 154

MANUFACTURERS NATIONAL BANK OF TROY, NEW YORK, as Trustee u/w of Daisy McC. Clarke v. Anna Ryan McCOY et al.

C. Q. No. 1-72.

Supreme Court of Rhode Island.

July 14, 1965.

Sheffield & Harvey, Richard B. Sheffield, Newport, for complainant.

Edwards & Angell, John V. Kean, John Fenn Brill, Providence, for respondent Kate L. McCoy Wilcox.

Graham, Reid, Ewing & Stapleton, Robert A. Mercer, James A. Jackson, Providence, for respondents Eleanor Niles and Kenneth Mealy, Jr.

Corcoran, Peckham & Hayes, Edward B. Corcoran, Newport, guardian ad litem and attorney for persons in the military service.

JOSLIN, Justice.

This is a bill in equity brought in the superior court for the construction of and instructions in relation to a will. When the cause was ready for hearing on the final decree it was, as required by G.L. 1956, § 9-24-28, certified to this court for determination. The complainant is the trustee of a trust fund created by the third clause of the will of Daisy McC. Clarke, late of the city of Newport, hereinafter referred to as the testatrix.

The complainant asks us with reference to clause third of that will to instruct it as to those entitled to receive the principal, the unapplied income, and the income collected subsequent to the death of Josephine Corey, the life tenant.

The third clause in pertinent part reads as follows:

'Third. I give and bequeath to the following named as bequests to them respectively, to wit:

'* * *

'To my cousins-german on my father's side, namely the children of my father's brothers and sisters the sum of Fifty thousand dollars ($50,000) to be divided between them equally share & share alike, the child or children of any deceased cousingerman as aforesaid to take the share which such deceased would have taken if living.

'To my Executor hereinafter named the sum of Fifty thousand dollars ($50,000.) in trust to invest the same and pay and apply the income there from to and for the use of my aforesaid cousin Josephine Corey during the term of her natural life. And upon her death I give and bequeath the said trust fund of Fifty thousand dollars and all unapplied income to my said cousins-german on my father's side to be divided between them and the child or children of any of them who may have died before the termination of said trust in the same proportions as provided in the last pre-ceding clause hereof in respect of a legacy to such cousins-german.'

The parties accept as the meaning of the term 'cousins-german' the definition given in Webster's Third New International Dictionary, p. 524, 'related by descent from a common ancestor, having the same parents,' and for convenience further reference to 'cousins-german on my father's side' shall sometimes hereinafter be by the word 'cousins.'

Our recital of the facts is limited to those having relevance to the issue before us. There were living at one time or another during the lifetime of the testatrix five cousins, namely, Robert P. McCoy, Susan D. McCoy, Jay S. McCoy, Kate L. McCoy Wilcox, and Mary F. Bonce. All survived the testatrix excepting only Mary F. Bonce who died prior to the time the testatrix executed her will, and of the remaining four, all predeceased the life tenant and without children, except for Kate L. McCoy Wilcox who is presently living and a respondent.

Robert P. McCoy died testate and his widow, who died without known heirs or legatees, was the sole beneficiary under his will; Susan D. McCoy died intestate and unmarried leaving as her heirs and next of kin, Jay S. McCoy and Kate L. McCoy Wilcox; Jay S. McCoy died intestate leaving as his heirs and next of kin his widow and Kate L. McCoy Wilcix, the widow since having deceased testate.

Mrs. Bonce's only living lineal descendants at her death were two grandchildren both of whom survived the testatrix but predeceased the lief tenant, one leaving two surviving children and the other a widow but no issue.

It is represented that all known parties who may have any interest have been joined as parties respondent. The interests of persons not in being or unascertainable generally, of those who claim through the estate of Robert P. McCoy's widow, and of those who are the unknown heirs of the grandchild of Mrs. Bonce who died leaving a widow but no issue, are represented by a guardian ad litem as well as are the interests of those who may be in the military service. A decree pro confesso was entered as against the executor under the will of Jay S. McCoy's widow.

The initial question is whether the bequest under consideration was a class gift. On that question, as on others relating to construction of wills, our obligation is to ascertain, if possible, the dispositive intent expressed in the will read in its entirety and in the light of the circumstances of its formulation. Where ascertainable, if not contrary to law, we give it effect. Rhode Island Hospital Trust Co. v. Thomas, 73 R.I. 277, 281, 54 A.2d 432; Rhode Island Hospital Trust Co. v. Proprietors of Swan Point Cemetery, 62 R.I. 83, 94, 3 A.2d 236; R. I. Hospital Trust Co. v. Calef, 43 R.I. 518, 521, 112 A.2d 787. It is only whe in the search we find, instead of evidence of intention, ambiguity or doubt as to intention or language equally susceptible of conflicting inferences as to what was the dispositive intent that we resort to the rules of construction. Industrial Trust Co. v. Wilson, 61 R.I. 169, 200 A. 467. When obscurity exists and the constructional aids are invoked, they are not applied as rules of positive law, or for the purpose of discovering an undisclosed intention of the testator, but to test an otherwise obscure intention by the application of constructional preferences for the purpose of reaching a judicial determination. Rhode Island Hospital Trust Co. v. Thomas, supra, at p. 281, 54 A.2d 432. This process, according to some of the text writers, involves, within the context of the testamentary language and the circumstances attendant upon the instrument's formulation, an ascertainment of what would have been the probable intention of the average testator faced with the particular problem. 2 Scott, Trusts (2d ed.) § 164.1, p. 1160; 5 American Law of Property § 22.3, p. 248.

In our judgment the testatrix using familiar legal language clearly demonstrated an intention to benefit a class. Her gift was of an aggregate sum to 'my said cousins-german on my father's side to be divided between them and the child or children of any of them who may have died before the termination of said trust * * *.' By that language the number of generally-described possible takers, although then uncertain, would at some future time become determinable and at the same time the share of each taker could be ascertained. The amount of the share would, of course, depend upon the ultimate number of takers. In the absence of a clearly manifested contrary intention, and there is none here, we presume that the testatrix selected her language intending that it be given its ordinary legal meaning. Starrett v. Botsford, 64 R.I. 1, 9 A.2d 871; Dodge v. Slate, 71 R.I. 191, 43 A.2d 242. So construed, the beneficiaries of her disposition constitute a group and her will speaks the language of a class gift. Hazard v. Stevens, 36 R.I. 90, 99, 88 A.2d 980; R. I. Hospital Trust Co. v. Calef, supra.

In our judgment the primary members of that group were her cousins, and the children of a cousin were to benefit only if their parent predeceased them. A fair reading of the two paragraphs of the third clause permits no other reasonable construction.

We conclude, therefore, that the testatrix intended in clause third to make a gift to a class consisting of her cousins with a substitutional gift to the child or children of an original taker, the alternative to take effect if a cousin predeceased the time fixed for distribution leaving a child or children surviving. We have similarly concluded as to wills containing analogous language. In re Norris, 46 R.I. 57, 125 A. 84; Tetlow v. Capron, 49 R.I. 162, 167, 141 A. 326; Rhode Island Hospital Trust Co v. Thomas, supra; R. I. Hospital Trust Co. v. Calef, supra.

Although the parties argued the question of the nature of the gift and the composition of the class, their disagreement thereon was not serious, excepting insofar as the effect our determination thereof might have on whether cousins surviving the effective date of the will took an indefeasibly vested remainder subject to being divested in the event of death leaving a child or children surviving or to partial divestiture in the share to the taken if the class were to increase because of the birth of a cousin subsequent to the effective date of the will. It is to the time of the vesting of the gift to the class that we now direct our attention.

On that problem the testatrix could have manifested her intention in such a way as to make unnecessary resort to a suit for construction. The difficulty, however, is that a reading of the will leaves doubt instead of reasonable certainty as to whether the testatrix intended to condition a cousin's right to take upon survival until the end of the preceding interest of the life tenant. The problem is not unique. It has concerned us frequently in the past.

The respondent Kate L. McCoy Wilcox, the only cousin who survived the life tenant, while citing Taber v. Talcott, 40 R.I. 338, 101 A. 2, ¹ and Industrial Trust Co. v Wilson, 61 R.I. [100 R.I. 161] 169, 200 A. 467, ² relies principally upon Luttgen v. Tiffany, 37 R.I. 416, 90 A. 182, as authority for her contention that the class gift did not vest until the death of the life tenant.

In that case, using language substantially the same as did this testatrix, the residuary estate was left in trust to pay the income therefrom to the widow for life and upon her death the testator gave, devised, and bequeathed 'all of my estate which may be remaining in the hands of my said trustee at the time of the...