Old Colony Trust Co. v. Smith

• Decision Date: 27 March 1929
• Parties: OLD COLONY TRUST CO. v. SMITH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 500

165 N.E. 657

OLD COLONY TRUST CO.

v.SMITH et al.

Supreme Judicial Court of Massachusetts, Worcester.

March 27, 1929.

Appeal from Probate Court, Worcester County; F. H. Chamberlain, Judge.

A second account was filed by the Old Colony Trust Company, a trustee under a will, and from a decree allowing the account Reginald Heber Smith and others appeal. Decree reversed.

F. S. Moulton, of Boston, for petitioner.

L. E. Green, of Boston, for appellant R. H. Smith, guardian ad litem.

A. Lincoln, guardian ad litem, of Boston, pro se.

RUGG, C. J.

This is an appeal from a decree allowing an account of a trustee under a will. The testator directed the payment of his debts and other charges, bequeathed numerous legacies, and by article ten gave ‘the rest, residue and remainder’ of his estate to the accountant in trust for investment and reinvestment, for collection and payment of ‘the income from said fund’ as there specified, and for final distribution of the principal of the trust. The single point at issue between the parties relates to the proper disposition of $1,800.27. That amount represents the income derived from the funds used to pay debts, legacies and expenses of administration,and received by the executors between the date of the testator's death and the time when the trust estate was turned over to the accountant as trustee. No controversy exists as to the correctness of the method, or of the computations, by which this element of income was ascertained, and therefore it need not be described. The precise question to be decided is whether that sum ought to be distributed to the beneficiaries of the trust fund as income, or ought to be added to and incorporated with the principal of the residue. The decision depends upon the intent of the testator as gathered from all the words of the will. That intent, when ascertained, is to be given effect unless contrary to some positive rule of law. Certain canons of interpretation have been established as aids for determining that intent when not expressed with indubitable clearness by plain words. Ware v. Minot, 202 Mass. 512, 516, 88 N. E. 1091. The testamentary words ‘rest, residue and remainder’ comprehend the whole of the estate of every description left by the testator subject to all deductions required by operation of law or by direction of the testator. They signify a complete disposition of all property of the testator. Angell v. Springfield Home for Aged Women, 157 Mass. 241, 247, 31 N. E. 1064,Jones v. Gane, 205 Mass. 37, 43, 91 N. E. 129. In the absence of controlling words to the contrary, ‘this residue must be considered as formed at the time of the decease of the testator.’ Where the gift of the residue is after the payment of debts and similar charges and non-deferred legacies, the residue is to be formed subject to such payments even though actually made at a later time. Treadwell v. Cordis, 5 Gray, 341, 348, 352, 358. It was expressly stated by Chief Justice Shaw in Minot v. Amory, 2 Cush. 377, 386, that trustees in making up their accounts should credit to income ‘all sums received as income, either through the executors or by themselves, after receiving the capital’; and again in Lovering v. Minot, 9 Cush. 151, 157, that where the words of the will are ‘the income’ ‘with...