Moore v. Emery

• Decision Date: 12 March 1941
• Citation: Moore v. Emery, 137 Me. 259, 18 A.2d 781 (Me. 1941)
• Parties: MOORE et al. v. EMERY et al.
• Court: Maine Supreme Court

18 A.2d 781

MOORE et al.

v. EMERY et al.

Supreme Judicial Court of Maine.

March 12, 1941.

[Copyrighted material omitted.]

Report from Supreme Judicial Court, Hancock County.

Suit by Alexandra E. Moore and others against Thomas Emery and others for the construction of the will of John J. Emery, deceased. On report to the Supreme Judicial Court.

Case remanded to the sitting justice for decree, in accordance with opinion.

Argued before BARNES, C. J, and STURGIS, THAXTER, HUDSON, MANSER, and WORSTER, JJ.

David O. Rodick, of Deasy, Lynam, Rodick & Rodick, of Bar Harbor, for plaintiffs.

Maurice Bower Saul and Raymond M. Remick, of Saul, Ewing, Remick & Saul, both of Philadelphia, Pa, Frank W. Gray, of Bar Harbor, for respondents.

Harold H. Murchie, of Calais, for the guardian ad litem.

THAXTER, Justice.

This case is before us on report. Alexandra E. Moore, Lela Emery Marquise de Talleyrand, and Audrey Princess Anna Ilyinsky now known as Princess Dimitri Djordjadze, three of the children of John J. Emery, late of Bar Harbor, bring a bill in equity asking for a construction of certain clauses of his will. Coupled with the prayer for construction is one that the Girard Trust Company, the trustee under the will and a defendant in this action, be instructed as to the proper disposition of cash received from the sale of stock warrants and rights and as to the status of certain stock dividends including fractional shares and script received by it as trustee. The defendants named in the bill are two sons of the testator, and the Girard Trust Company. A guardian ad litem was appointed to represent and act for the minor children of the children of the testator and all issue not in being of the children of the testator. The defendants named in the bill and the guardian ad litem filed answers, and joined in the prayer of the bill for construction of the will and for instructions to the trustee.

A review of the facts is necessary for a solution of the issues properly presented by the pleadings.

John J. Emery died September 5, 1908, leaving a large estate. His will was admitted to probate in Hancock County November 4, 1908. His widow, Lela A. Emery, waived the provisions of the will in her favor and elected to take by descent in accordance with the provisions of Rev. Stat. 1903, Ch. 77, § 13. She is therefore not concerned with the present litigation. At the age of eighteen she had married Mr. Emery who was then fifty-eight. In 1902, possessed of a very large estate, he drew his own will and died six years later at the age of seventy-three, leaving two sons and three daughters, the youngest of whom, Audrey, was born two years after the execution of the will. The testator was not a lawyer and his attempt to draft a very complicated will to give effect to certain dispositions of his property which he did want and to prevent its passing in certain ways which he did not want has posed for his children many problems, some immediate, some remote or contingent, but all of which they have bundled up with more or less despair and present to this court for solution.

Under the provisions of the will, Thomas J. Emery, his brother, was appointed executor, and the Girard Trust Company was named trustee. He gave to his widow the use of certain real estate and personal property so long as she should remain his widow, and, after providing for a number of bequests not of importance in this proceeding, gave the balance of the estate to the trustee. One third of the income remaining in the hands of the trustee with the exception of income on accumulations was to be paid to the widow until the time when what was called in the 23rd clause of the will the "final distribution" of the estate should be made. As the widow waived the provisions of the will for her benefit, they are not of importance except in so far as they may throw light on the general purposes which the testator had in mind.

He then directed in clauses 9 and 10 that on any son reaching the age of twenty-one years the trustee should set apart for him the sum of $50,000 in trust and should pay the income to him. He then in clauses 11 and 12 made a similar provision for each of his daughters. In clause 13 he provided that on a son reaching the age of thirty years, or if he should marry at an earlier age with the consent of his mother or guardian, an advancement was to be made to him of $150,000. A similar provision in clause 14 was made for each daughter; but instead of her share being paid outright it was to be held in trust during her life and she was to receive only the income. By the provisions of clause 16 whenever a son should reach thirty-five years of age a further advancement was to be made to him of $150,000. A similar provision by clause 17 was made for each daughter; but as in the case of the first advancement her share was to be held in trust. The 18th clause of the will provides for the termination of the above special trusts for the daughters. It reads as follows:

"The special trusts created in clauses 11th, 12th, 14th and 17th of this will shall terminate at the death of each daughter. Each daughter is hereby given the power to dispose of by will the principal of the trusts created in her favor, provided it be bequeathed to my descendants. At the death of each daughter of mine, I direct my Trustee to pay or transfer so much of my estate as may be held in special trust for the said daughter, to the executor or executors of the will of said daughter to be disposed of as provided in such will to my descendant or descendants. If a daughter of mine die intestate leaving issue, I direct my Trustee to pay the principal of her special trusts to her legal representative. If any of my daughters die intestate and without issue, the special trusts created in her favor shall revert to my es. tate."

The next clause of the will is significant as showing the fear which the testator had that a daughter's husband might obtain control of the money paid to her. It directs that payments by the trustee shall be made so far as possible by direct communication with the daughters and "free from the control of any husband."

Clause 20 provides that until the "final distribution" so called any surplus income of the principal trust as distinguished from the special trusts above mentioned shall be added to the principal as accumulations. But there is a proviso that in case of misfortune suffered by any child advancements could be made by the trustee to such child or to his or her children from this accumulated income, such advancements to be charged against the share of such child in final distribution.

By the provisions of clause 25 the trust fund of $50,000 set up for each son when he should reach the age of twenty-one years was to be paid to each when he should reach the age of thirty-nine years. When this has been done it should be noted that each son will have received outright $350,000 and similarly each daughter, when she shall have arrived at the age of thirty-five years, will have received a like amount to be held for her in trust during her life, she to have the right to dispose of the principal by will as provided in the 18th clause of the will.

By clauses 23 and 24 the will provides for what the testator calls "the final distribution of my estate." What is the principal trust, being the balance of the estate in the hands of the trustee, is to be disposed of in the following manner: When the youngest surviving son arrives at the age of forty years, the trustee is directed to appraise the estate, to add thereto the sum of any advancements made to any children or their issue, including therein all payments made to the sons, and the value of the special trusts set up for the daughters, "and then to divide the sum total produced by this addition into as many equal parts as I may leave children living at the time of the arrival of my youngest son at the age of forty years and including as representing one equal part the issue of any child who may have deceased, and also one equal part to my widow, if she be then living, and thereupon to pay and transfer to each of my sons one of the said equal parts, or so much property as will equal one of the said equal parts, deducting from each share so paid or transferred, the sum of the advancements made to him. One equal share shall be allotted to my widow and one equal share shall be allotted to each daughter and one equal share shall be allotted to the issue of any deceased child of mine, after deducting from the share of each the sum of all advancements and of special trusts for her benefit to each daughter or to the issue of any child who may have deceased. Upon such distribution of my estate all rights of my widow under clause 7th of this will shall cease and determine but the right to use and occupy my residences as provided shall continue until her death or remarriage."

The 24th clause of the will, which provides for the termination of the trusts set up in the 23rd clause reads as follows:

"I hereby direct that the shares in this division allotted to my widow and to my daughters shall be held by my Trustee for them during their lives for their benefit, the income to be paid to each and at the death of each the principal shall pass to my descendants only, and in the manner, in equal or unequal shares, and at the time prescribed in the wills of each one. In the event of my widow or daughter or daughters dying intestate, the share of each so dying shall be distributed among my descendants only, and equally according to the statutes then in force."

It is perhaps well to call attention to the 26th clause of the will which expresses the intention of the testator to treat all of his children exactly alike, except of course with respect to the control by the daughters over the principal of their shares. The 28th clause of the will also makes plain the testator's purpose that the issue of a deceased child is to succeed to the...