New England Trust Co. v. Sanger

• Decision Date: 04 November 1955
• Citation: 151 Me. 295,118 A.2d 760
• Parties: The NEW ENGLAND TRUST COMPANY et al., v. Elizabeth M. SANGER et al.
• Court: Maine Supreme Court

Page 760

118 A.2d 760

151 Me. 295

The NEW ENGLAND TRUST COMPANY et al., v. Elizabeth M. SANGER et al.

Supreme Judicial Court of Maine.

Nov. 4, 1955.

James M. Gillin, Bangor, Palmer, Dodge, Gardner & Bradford, Boston, Mass., for plaintiffs.

Eaton, Peabody, Bradford & Veague, Bangor, for Sabin Sanger, 2d.

Bingham, Dana & Gould, Boston, Mass., for Richard G. Averill and Constance S. Averill.

Henry W. Keyes, Boston, Mass., guardian ad litem.

Verrill, Dana, Walker, Philbrick & Whitehouse, Portland, Spencer, Stone & Mason, by Carlton W. Spencer, Boston, Mass., for Elizabeth M. Sanger, Eugene B. Sanger, 3rd, and James D. M. Sanger.

Before FELLOWS, C. J., and WEBBER, BELIVEAU, TAPLEY and CLARKE, JJ.

FELLOWS, Chief Justice.

This is a bill in equity brought by The New England Trust Company of Boston, Massachusetts, Sabin P. Sanger, 2nd, of Wellesley, Massachusetts, and Glenna R. McCurdy of Bangor, Maine, as trustees under Article Seventeenth of the Will of Dr. Eugene B. Sanger late of Bangor, Penobscot County, Maine, deceased. The bill is brought against Elizabeth M. Sanger, Eugene B. Sanger, 3d, and James D. M. Sanger of Framingham, Massachusetts, Richard G. Averill of Wellesley, Massachusetts, Constance S. Averill of Schenectady, New York and Sabin P. Sanger, 2nd, individually, of Wellesley, Massachusetts. This bill in equity alleges that the plaintiffs are in doubt as to the disposition of the proportional share of the principal of the trust created thereby, represented by the share of Eugene B. Sanger, Jr., son of the testator and now deceased. The case comes to the Law Court on report of the evidence taken June 2, 1955 before a single Justice of the Supreme Judicial Court in Penobscot County. The Law Court is to render such final decision, on so much of the evidence as is legally admissible, as law and equity require.

The evidence shows that Dr. Eugene B. Sanger, a physician and surgeon of Bangor, Maine, died on September 11, 1945, testate. His will was allowed in the Probate Court for Penobscot County, Maine, September 25, 1945. At the time of his death, Dr. Sanger left as his next of kin two sons and a daughter, viz.: Eugene B. Sanger, Jr., Charlotte S. Averill, and Sabin P. Sanger, 2nd. The daughter, Charlotte S. Averill, died on September 26, 1947 leaving two children born to her (now of age) named Richard G. Averill and Constance S. Averill. Eugene B. Sanger, Jr. died on January 16, 1954, leaving as his widow Elizabeth B. Sanger (now Elizabeth M. Termini) and two children (minors legally adopted by him in Massachusetts by decree of the Middlesex County Probate Court, June 21, 1946). The adopted children are named Eugene B.Sanger, 3d and James D. M. Sanger, who are represented by duly appointed guardian ad litem, and by counsel.

The will of Dr. Sanger, disposing of his large estate, is a lengthy document (1) providing for payments of debts and taxes, (2) care of cemetery lot, (3) gift to Congregational Church $1,500 in memory of his deceased wife Ethel Field Sanger, (4) to his three children jewelry, household furniture and personal effects formerly of their mother, (5) to his children a division of certain specified household furnishings, (6) medical and surgical library and instruments to a friend, (7) authority to executors to settle agreement made by him May 28, 1940 with divorced wife, (8) to his three children a division of certain shares of stock, (9) a gift to daughter Charlotte Sanger Averill of $10,000, (10) the sum of $50,000 to his son Eugene B Sanger, Jr., (11) a trust fund of $50,000 for benefit of son Sabin P. Sanger, 2d, (12) to his grandson Richard G. Averill $5,000, (13) to his granddaughter Constance S. Averill $5,000, (14)-(15)-(16) bequests to friends and employees, (17) (The contested paragraph): The rest, residue and remainder to trustees in trust for his three children--annual income divided equally and paid during their lives--the principal vesting proportionately at death of a child in 'lineal descendants' or if none, in 'his or her heirs at law,' with a gift to the Eastern Maine General Hospital if on 'the death of the last survivor of my children there shall be surviving no lineal descendants of mine,' (18) a provision that children cannot alienate or anticipate principal and income, (19) nomination of personal representatives. The will is dated August 22, 1945. The present value of the trust, under Article 17 of the will, is more than $700,000. The share now in dispute is one-half of the value.

Under this trust provided for in the Seventeenth paragraph of the will, the income from the residue of Dr. Sanger's estate was to be divided equally among his three children, Eugene B. Jr., Sabin P. 2d, and Charlotte Averill. That said Seventeenth paragraph, after naming the trustees, and stating their authority, provides as follows:

(1) 'The net annual income arising from said trust shall be divided among my said three children and paid over to them in quarter-annual installments, as near as may be, during their respective lives.'

(2) 'Upon the death of any one of my children leaving lineal descendants, said trust shall cease as to the proportional share of the principal of said trust represented by said deceased child's share in the income of the trust at the date of such death and shall vest at once in such lineal descendants per stirpes and not per capita.'

(3) 'If any of my said children should die, leaving at the time of such death no lineal descendants, then such part of the trust fund as would have vested in such lineal descendants, had any such existed, shall vest free of any trust in his or her heirs at law.'

(4) 'If, upon the death of the last survivor of my children, there shall be surviving no lineal descendants of mine, then all that portion of the principal of this trust that shall not have vested previously, I give, bequeath and devise to the Eastern Maine General Hospital, of Bangor, Maine, for the erection of a surgical building with operating rooms, to be known as the Sanger Surgical Building.'

The plaintiff trustees in their bill in equity state their doubts in this manner:

'That your plaintiffs are in doubt as to the proper construction of said Article Seventeenth of the will of said Dr. Eugene B. Sanger insofar as it relates to the disposition of the proportional share of the principal of the trust created thereby represented by the share of Eugene B. Sanger, Jr., deceased, as it relates to the income thereof at the date of his death, and with respect to the person or persons in whom said proportional share of the principal of said trust has vested and who are entitled to receive such proportional share of the principal of said trust; and are particularly in doubt as to the following:'

'(a) Whether said Eugene B. Sanger, Jr. left surviving him 'lineal descendants', within the meaning and intent of those words as used in Article Seventeenth of the will of the testator Dr. Eugene B. Sanger, in whom the said Eugene B. Sanger Jr.'s proportional share of the principal of said trust represented by his share in the income thereof at the date of his death vested, free of trust, upon his death; and if so just what person or persons are his 'lineal descendants' in the premises.'

'(b) Whether if said Eugene B. Sanger Jr. left him surviving no 'lineal descendants', within the meaning and intent of those words as used in Article Seventeenth of the Will of the testator Dr. Eugene B. Sanger, then just what person or persons are his 'heirs-at-law', within the meaning and intent of those words as used in Article Seventeenth, in whom said Eugene B. Sanger Jr.'s proportional share of the principal of said trust represented by his share in the income thereof at the date of his death vested, free of trust, upon his death.'

'(c) Just what person or persons are entitled to receive distribution of said Eugene B. Sanger Jr.'s proportional share of the principal of said trust represented by his share in the income thereof at the date of his death, and of the income accruing thereon from the date of the death of said Eugene B. Sanger, Jr.'

The plaintiff trustees in their brief further and also say:

'There exists doubt, under the Maine decisions, whether, under a will like Dr. Sanger's, adopted children shall be regarded as a life tenant's 'lineal descendant.' In determining whether under Dr. Sanger's will the adopted children of Eugene, Jr., were his 'lineal descendants' the case of Warren v. Prescott, 84 Me. 483, 24 A. 948, 17 L.R.A. 435, is not conclusive of the question, although it did hold an adopted child to be a 'lineal descendant's for the purposes of the 'lapse' statute with respect to an adopting parent who died before the testatrix. The trustees are reasonably in doubt how far some of the language and possible implications of that case may be applicable to the language of Dr. Sanger's will.'

'If the adopted children of Eugene, Jr., are not 'lineal descendants' of Eugene, Jr., within the meaning of Dr. Sanger's will, the trustees are reasonably in doubt, under the existing Maine cases, whether, under Dr. Sanger's will, the adopted children should be considered as 'heirs at law' of Eugene, Jr.'

The following claims of the parties present the questions for decision:

It is the contention of the defendants Sabin P. Sanger, 2nd (son), and Constance and Richard Averill (children of the deceased daughter) that the children adopted by Eugene B. Sanger, Jr., on June 21, 1946, are neither his 'lineal descendants' nor his 'heirs at law' within the meaning of the testator's will. These defendants also claim that since Eugene B. Sanger, Jr. had no children born to him during his lifetime, these defendants, Sabin P. Sanger, 2nd, Constance Averill and Richard Averill (as his only surviving son and the only children of his deceased daughter) are entitled to take the share of the principal from which Eugene B. Sanger, Jr. received the income during his lifetime....