Mellen v. Mellen

• Citation: 90 A.2d 818,148 Me. 153
• Parties: MELLEN et al. v. MELLEN et al.
• Decision Date: 30 July 1952
• Court: Maine Supreme Court

Page 818

90 A.2d 818

148 Me. 153

MELLEN et al. v. MELLEN et al.

Supreme Judicial Court of Maine.

July 30, 1952.

Sanborn & Sanborn, Augusta, for plaintiffs.

Verrill, Dana, Walker, Philbrick & Whitehouse, Portland, for defendants.

Before MURCHIE, C. J., an FELLOWS, MERRILL and NULTY, JJ.

MURCHIE, Chief Justice.

This process was instituted by Chase Mellen, Jr. and George Woodbridge, two of eight grandchildren of Joseph H. Manley, late of Augusta, who died February 7, 1905. They are the successor trustees under his will, executed June 17, 1902, and are seeking a construction of its Eleventh Paragraph, which must control the disposition of the corpus of a trust created therein and terminated by the death of Sydney S. M. Breck, the last survivor of his four children, on March 18, 1951. The proceeding was commenced on August 2nd thereafter.

The eight grandchildren are the respondents. They take the entire estate. The issue, an entirely friendly one, as is demonstrated by the fact that all accepted service and joined in the prayer for construction, is whether they are to divide it per capita or per stirpes. Three are children of Lucy M. Mellen, two of Harriet M. Woodbridge, and three of Sydney S. M. Breck. The two are prosecuting this appeal, which is from a decree ordering a per capita distribution. The Justice who entered it filed 'Findings' recording his 'opinion' that that was what the testator 'intended'. This represents his construction of the will. A per capita division means an eighth for each grandchild. A stirpital one would give the two appellants each a sixth and each of the others a ninth.

The case was decided on the bill and answers. No facts are in dispute. The making of the will, the deaths of the testator and the last surviving child, the relationships, and all essential probate proceedings were duly alleged and admitted. A copy of the will was attached to the bill. It represents all the evidence in the case. There was no oral testimony. All the language of the will susceptible of indicating the testamentary intention found by the single Justice, or that for which the appellants contend, is carried in Paragraphs Seventh to Eleventh inclusive, which read as follows:

'Seventh:--All the rest and residue of my estate, both real and personal and wherever situated, and including all sums which may be received from life insurance policies and benefit certificates, I give, devise and bequeath to my son, Samuel Cony Manley of said Augusta, in trust, nevertheless, for the following purposes, viz: To invest and reinvest said rest and residue in such manner as shall be for the interest of my estate, and to divide the net income equally among as many of my children, Samuel Cony Manley, Lucy M. Mellen, Harriet Manley and Sydney S. Manley, as may at the time be living, and the children of a deceased child or children by right of representation.

'Eighth:--In case my said son, Samuel Cony Manley shall marry and shall die without issue leaving a widow, I direct that such widow shall receive during her widowhood the income from the share of my estate from which my said son would receive the income if living.

'Ninth:--I express the desire that the Cony homestead, situate on Stone Street, in said Augusta, shall be kept for the personal occupation of my children so long as it can be done without detriment to the interest of my said children.

'Tenth:--If at the time of the death of all my children but one, there shall be living no grandchild, nor issue of a grandchild, I direct that the trust created by the seventh item of this my Last Will shall terminate, and that all said estate shall then vest in such one surviving child subject only to the payment of income to a widow of my said son as provided by the eighth item of this my Last Will.

'Eleventh:--Upon the death of all my children I direct that the trust created by the seventh item of this my Last Will shall terminate, and that all said estate shall then vest in my grandchildren subject only to the payment of income to a widow of my said son as provided by the eighth item of this my Last Will.'

Reference to the allegations of the process shows that the family of the testator which consisted of four children and two grandchildren at the time of the execution of the will, was increased thereafter by the birth of six additional grandchildren. The testator's fundamental plan, undoubtedly, was that his estate should be held intact so long as any of his children survived; that the income yielded by it should be divided among his children to provide support for them during their lives; and that, when such purpose had been accomplished, the principal would be divided among his grandchildren. It is clear that he intended each child to have a proportionate share of the income, for life, and no more, and to take no part of the principal except in the contingency stated in the Tenth Paragraph. The share of the income payable to any one child was not to be increased by the death of another, unless that other died without issue, and not then if the death was that of the son and he should leave a widow. The distribution of income was to be stirpital. It was controlled by the word 'equally', which assured each child a proportionate share, and the express recital that when a child died leaving issue, his or her children should have the share of the parent 'by right of representation'.

The testator made it plain, also, that there were to be no vested interests in the principal of his estate so long as the trust continued. Alternative provisions for its termination were carried in Paragraphs Tenth and Eleventh, but in each the declaration was explicit that the estate should 'then vest', either in the last surviving child, if there were no grandchildren, or the issue of any, under the Tenth, or in the grandchildren, if there were, under the Eleventh.

The opposing claims were ably presented, within the fundamental rule of testamentary construction always recognized in this Court, that the intention of a testator, if ascertainable from his will, considered as a whole, shall be given effect. Hopkins v. Keazer, 89 Me. 347, 36 A. 615; Giddings v. Gillingham, 108 Me. 512, 81 A. 951; Bryant v. Plummer, 111 Me. 511, 90 A. 171; Tucker v. Nugent, 117 Me. 10, 102 A. 307; Merrill Trust Co. v. Perkins, 142 Me. 363, 53 A.2d 260; and Dow v. Bailey, 146 Me. 45, 77 A.2d 567. It is urged for the appellees that the construction declared by the single Justice gives effect to the basic design of the will, and is in accord with presumptions applicable to all cases whether there is a gift to a class, particularly one the members of which bear identical relationship to the testator. They urge also that the findings of a single Justice should not be disturbed unless obviously wrong, citing Young v. Witham, 75 Me. 536, and cases decided on its authority. As against this, the appellants insist that the will discloses a stirpital intention relative to the principal as plainly implicit as that clearly expressed for the income, and that the case should not be viewed:

'as a battle between technically caparisoned 'presumptions."

Before proceeding to the merits of the case, it seems necessary to dispose of the claim of the appellees, that the principle declared in Young v. Witham, supra, is applicable to a 'finding' of testamentary intention. The claim has no merit in a case which involves no oral testimony. The principle rests upon the particular...