Ortman v. Streeter

• Decision Date: 12 December 1941
• Docket Number: No. 1568.,1568.
• Citation: 23 A.2d 189
• Parties: ORTMAN et al. v. STREETER.
• Court: Rhode Island Supreme Court

23 A.2d 189

ORTMAN et al.

v. STREETER.

No. 1568.

Supreme Court of Rhode Island.

Dec. 12, 1941.

Certified from Superior Court, Providence and Bristol Counties.

Bill in equity by Carla Ortman and others against Bertha E. Streeter for the construction of certain portions of a will. The cause was certified to the Supreme Court.

Decree in accordance with opinion.

J. Raymond Dubee and Francis J. O'Brien, both of Providence, for complainants.

Voigt, Wright & Clason and John J. McGrane, all of Providence, for respondent.

CAPOTOSTO, Justice.

This is a bill in equity brought in the superior court for the construction of certain portions of the will of Jeannette W. M. Smith. The cause was certified to this court pursuant to the provisions of general laws 1938, chapter 545, § 7.

The bill also contains certain other prayers for removal of cloud on title to certain real estate therein described. The statute under which this cause was certified provides a direct and simple procedure for the construction of a will by a bill in equity for that purpose only. Maddalena v. Masso, 48 R.I. 92, 135 A. 601; Newport Hospital v. Harvey, 47 R.I. 382, 133 A. 648. However, notwithstanding the other abovementioned prayers, a fair reading of the bill shows that it is one primarily for the construction of a will. Therefore, we will treat the prayers for removal of cloud on title as surplusage and consider the cause as one solely for the construction of a will. Horton v. Horton, 46 R. I. 492, 129 A. 499. See Gould v. Trenberth, 59 R.I. 220, 194 A. 736.

The record before us shows the following facts. The complainants are twenty-eight heirs at law of Jeannette W. M. Smith. The respondent is the grantee of certain described real estate on Olney avenue in the town of North Providence by deed to her from Sheffield Smith, husband of Jeannette W. M. Smith. The real estate here in question was devised in the will of Mrs. Smith, dated December 6, 1906, as follows:

"Fourth. I give, devise and bequeath unto my said husband all my property and estate of every name and nature, and wheresoever situated, expressly including any real estate hereafter by me acquired, to have and to hold for and during the term of his life.

"Fifth. I hereby authorize and empower my said husband to grant, sell, convey, mortgage, assign and deliver at such times, and upon such terms and conditions, as he may deem proper, all and every part of my property and estate, both real and personal, and to execute and deliver any deeds, mortgages, bills of sale and other instruments for the purposes aforesaid, "without any order, power or authority from any court, judge or Judicial tribunal whatever, and in the same way to invest, re-invest, use and employ said property and estate, the income, moneys and proceeds therefrom, at his pleasure, and to expend for his support such part thereof as he may deem necessary, and it shall not be necessary for any purchaser or purchasers of any part of my said estate to look to the application of the purchase money.

"Sixth. Upon the death of my said husband, I give, devise and bequeath unto Joseph W. Smith, of said city of Providence, brother of my said husband, all my said property and estate, if any, remaining at the time of the decease of my said husband, to have and to hold to him, the said Joseph W. Smith, his heirs, executors, administrators and assigns forever."

Joseph W. Smith, the brother of Sheffield Smith, died January 31, 1931, a widower and without issue; Jeannette W. M. Smith died April 3, 1937; and her husband, Sheffield Smith, died August 15, 1937. On April 19, 1937, Sheffield Smith conveyed the property described in this bill to the respondent, Bertha E. Streeter. It is admitted that she paid nothing for the property and that such conveyance to her "was a pure gift". There is also considerable testimony establishing the close friendship of the respondent with Jeannette W. M. Smith and Sheffield Smith.

The record before us further shows that Jeannette W. M. Smith, Sheffield Smith and Joseph W. Smith executed their respective wills on December 6, 1906. The wills of Jeannette W. M. Smith and Sheffield Smith are reciprocally identical in all details, and in each Joseph W. Smith is named residuary devisee and legatee. Sheffield Smith is the sole beneficiary and executor under the will of Joseph W. Smith. This will further provides that if Sheffield Smith died before the testator, Jeannette W. M. Smith was to be substituted in all particulars in his place and stead.

In the instant cause we are asked to construe clauses fourth, fifth and sixth of the will of ...