Newport Hosp. v. Harvey

• Decision Date: 30 December 1927
• Docket Number: No. 796.,796.
• Parties: NEWPORT HOSPITAL v. HARVEY et al.
• Court: Rhode Island Supreme Court

139 A. 659

NEWPORT HOSPITAL

v. HARVEY et al.

No. 796.

Supreme Court of Rhode Island.

Dec. 30, 1927.

Appeal from Superior Court, Newport County; Edward W. Blodgett, Judge.

Suit for specific performance, brought by the Newport Hospital against William R. Harvey and another. From a decree in favor of complainant against the named respondent, said respondent appeals. Appeal denied, decree affirmed, and cause remanded.

William P. Sheffield, Jr., and J. Russell Haire, both of Newport, for appellant.

Burdick, Corcoran & Peckham, of Newport, for appellee.

BARROWS, J. This case formerly was here on erroneous certification. 47 R. I. 382, 133 A. 648. The Attorney General has been made a party since it went back to the superior court, and it now comes to us on respondent's appeal from a decree directing him to specifically perform a contract by which he agreed to purchase certain real estate from complainant.

No question of fact was raised. The legal question is whether complainant can convey the land in fee simple. This depends upon the construction to be given to a paragraph of the will of John Alfred Hazard, late of Newport, who died May 2, 1880, and which will, executed December 26, 1876, was duly admitted to probate. By its terms, after payment of debts and provision that "my wife shall have no portion of my property but only her dower in my real estate," he gave $5,000 to a servant and $500 to a cemetery corporation for perpetual care of his lot. All the rest, residue, and remainder of his estate he devised and bequeathed to the "Newport Hospital" in trust: (1) "To set apart and invest five thousand dollars raising said sum by sale of my real estate if necessary and pay and apply the income thereof to and for the use of Samuel C. Clinton" * * * for his life; (2) to set apart in the same way for Mrs. Rebecca Stanley $10,000; (3) "to forever keep in good order the monuments, graves, grounds and fences of the Easton burial lot on my farm at Sachuset Beach in Middletown;" (4) "to forever use and apply the whole residue and remainder of said trust property" for medical care of the poor under such regulations as the trustees of the hospital from time to time should prescribe, "the object hereof being to benefit as many such poor persons as practicable and at the same time provide and secure a permanent source of aid, remedy and relief." For the carrying out of such purpose testator provided that the trustees of the hospital "shall always have power to sell and change the investment of said trust property and every portion and parcel thereof whenever and as often as it may seem desirable to do so * * * and with continuous power to sell and change investments as aforesaid." As a part of said fourth provision, immediately following the above, appears the following paragraph:

"But I particularly desire and recommend that no part of my said farm in Middletown Shall ever be sold or in any way aliened or disposed of except by lease or leases for a term of not more than ten years each, from time to time as may seem proper."

The clause last quoted is the cause of the present litigation. Respondent contends that complainant cannot sell the Middletown farm of which the land he agreed to buy is a portion. The farm constituted only one parcel of testator's real estate holdings. Respondent urges that the later clause is inconsistent with the earlier giving an unlimited power of sale and so far as inconsistent curtails that power in accordance with the well-settled rule in such cases. Frelinghuysen v. Trust Co., 31 R I. 150, 77 A. 98, Ann. Cas. 1912B, 237; Goffe v. Goffe, 37 R. I. 542, 553, 554, 94 A. 2, Ann. Cas. 1916B, 240; Industrial Trust Co. v. McLaughlin, 44 R. I. 350, 117 A. 428; Re Cabell, 46 R. I. 372, 128 A. 559.

Few extrinsic circumstances exist to aid us. Testator owned considerable real estate near the ocean. The wisdom of this sale in prudent business management of the trust property is not involved. The question is solely one of power under the will. This is the first attempted sale of any portion of the farm. It is not denied that the first grant of authority to sell is explicit and includes the Middletown farm unless modified by the later expression of recommendation and desire.

It is agreed that the problem must be solved by ascertainment of testator's intention as shown by his whole will. That intention, if doubtful, is to be found by application of well-settled principles of law. Hochstedler v. Hochstedler (1886) 108 Ind. 506, 9 N. E. 467. One cardinal rule is to give effect to every portion of the will reconciling, if it fairly may be done, clauses susceptible of inconsistent construction. Frelinghuysen v. Trust Co., supra; Industrial Trust Co. v. McLaughlin, 44 R. I. 350, 117 A. 428; Roberts v. Roberts (1892) 140 Ill. 345, 29 N. E. 886; McClure v. McClure (1925) 319 Ill. 271, 149 N. E. 748. Schouler on Wills (6th Ed.) vol. 2, § 900, p. 1085, says:

"A later clause in a will must be deemed to affirm not to contradict an earlier clause if such construction can fairly be given. The effort * * * is to reconcile the instrument in all its parts and make the disposition a...