Parkhurst v. Ginn

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: RUGG
• Citation: 228 Mass. 159,117 N.E. 202
• Decision Date: 17 September 1917
• Parties: PARKHURST et al. v. GINN et al.

228 Mass. 159
117 N.E. 202

PARKHURST et al.
v.
GINN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 17, 1917.

Case Reserved from Supreme Judicial Court Middlesex County.

In the matter of the estate of Edwin Ginn, deceased. Petition by Lewis Parkhurst and others, as testamentary trustees, against M. Francesca Grebe Ginn and others, for the construction of will. On reservation. Executors instructed.

John Abbott, of Boston, for petitioners.

Arthur [228 Mass. 164]Lord, of Boston, for respondent M. F. G. Ginn, and others.

Russell, Pugh & Kneeland, of Boston, for respondents trustees of Tufts College.

Ropes, Gray, Boyden & Perkins and C. R. Clapp, all of Boston, for respondent Charlesbank Homes.

A. D. Hill and Robert Homans, both of Boston, for World Peace Foundation.

T. W. Proctor, of Boston, guardian ad litem, pro se.

Dunbar, Nutter & McClennen, of Boston, for respondents Ingleside Home and others.

George C. Coit, of Boston, for Maurice E. Ginn.

H. S. Riley, of Boston, for respondent Riley.

R. B. Coolidge, of Boston, for respondent Westbrook Seminary.

RUGG, C. J.

This is a petition by the trustees under the will of Edwin Ginn for instructions as to certain of their duties in the execution of their trust. The estate in their hands is something in excess of $2,000,000. Edwin Ginn died on January 21, 1914. He was the founder and senior member of the firm of Ginn & Co., publishers of educational and other books, and most of his estate was invested in that firm. The scheme of his will, shortly stated, is this: Legacies of different sums, aggregating about [228 Mass. 165]$200,000, are given by the first 14 articles, all of which have been paid in full by the executors. By article 16 power of sale is conferred upon executors and trustees, and by article 17 executors are appointed. This petition does not relate directly to any of these articles. The trust is created by article 15, which contains 15 clauses. By the first 7 clauses annuities are given to various persons, principally to members of the testator's family, amounting at present to $47,400, and having a maximum possibility of $51,000. Chief among these is an annuity of $25,000 to his widow for life. By clause 8 provision is made in considerable detail for the transfer under certain conditions to each of the testator's two sons of 1,000 shares in the firm of Ginn & Co. and for the sale by the trustees to each of these sons of a further number of shares, so that each may have an ownership equal to one-twelfth of the entire capital of that publishing house. By clause 9 provision is made for the retention of the Ginn homestead in Winchester as a part of the trust so long as occupied by his children or grandchildren, a life estate having been created in it for the benefit of his widow by another article. By clause 10 direction is given to the trustees respecting the

[117 N.E. 204]

carrying as a part of the body of the trust of certain shares in Ginn & Co., pursuant to powers, rights and options in its partnership articles. By clause 11 provision is made for the World Peace Foundation. By clause 12 the continued investment of the present proportional part of the trust fund in Ginn & Co. is expressly declared to be safe and proper. By clause 13, as modified by the codicil, pecuniary legacies amounting immediately to $35,000 and having a possible maximum aggregate of $50,000, are given out of the principal of the fund, after adequate provision has been made for the foregoing annuities and gifts of income. By clause 14 the residue of the estate is divided among certain educational and charitable institutions. Clause 15, relating to anticipations and deductions of legacies, is not involved in the issues here raised.

[1] 1. The first request for instructions is whether the trustees shall set apart any of the trust property as a separate fund for the benefit of the World Peace Foundation. The general plan of article 15 does not manifest a design for division of the body of the trust into distinct funds for the support of each [228 Mass. 166]beneficiary or of several groups of beneficiaries. The gift to the trustees, although most comprehensive of the entire residue of the property of the testator, nevertheless is single in nature. It is to the persons named ‘in trust, with the following powers and for the following purposes,’ succeeded first by the clauses establishing annuities and then by the one for the World Peace Foundation. The form of the gift, so far as it goes, indicates that the fund is a unit.

Other parts of the will confirm the interpretation that the trust is to be administered as one fund. In article 2 the testator directed that, if the homestead estate is sold during the life of his wife, the proceeds after her death shall ‘constitute a part of the trust fund hereinafter provided for the general residue of my estate.’ In article 15, by clauses 3 and 4, gifts are made ‘from the principal of the trust fund,’ by clause 4, a gift out of the income of the ‘trust fund,’ and by clause 5, a gift ‘from the income of the trust estate’; by clause 10 in two places the trustees are instructed to hold shares of Ginn & Co. ‘as a part of the principal of the trust fund,’ and in clause 14 the testator directs that the balance of seven-twentieths of the entire rest and residue of the estate ‘shall continue to be held by my trustees for the benefit of the World Peace Foundation, the income to be paid over to said Foundation, subject, however, to the same terms and conditions hereinabove set forth with relation to the payment of the income * * * of $800,000 of the principal of said trust fund.’ It is not likely that these phrases, referring unmistakably to a single trust fund, would have been used if a separation into several funds had been intended.

The words which state the provision for the World Peace Foundation disclose a plain design that it is not to be a segregated fund but a part of the income of a larger fund. The crucial and operative sentence is this:

‘I now authorize and instruct my trustees to pay over annually, or oftener if business convenience may permit, to the said World Peace Foundation, the income, as nearly as said trustees can conveniently reckon it, of eight hundred thousand dollars ($800,000.00) but not exceeding forty thousand dollars ($40,000.00) per year.’

These are the words of gift. They do not express the idea of a separate fund, nor fairly permit the inference that that was intended. If a fund was to be [228 Mass. 167]set apart, there would be no meaning for the words ‘the income, as nearly as said trustees can conveniently reckon it.’ Yet it is a rule of common sense as well as of testamentary construction that, where reasonably practicable, forceful meaning and effect shall be given to all the words used. The income of a definite fund is a fixed amount. When its expenses are deducted from its receipts an exact sum is found. No reckoning is needed, and it does not depend upon the convenience of anybody to ascertain the income of a separate fund with absolute accuracy. It requires no estimation to discover it without variation from the precise fact. Yet a likelihood of possible variation is the thought conveyed by the operative words of the gift. Those words aptly express the idea that the source from which the income is to flow is a larger fund than needed to produce this single annual payment, earning by its several investments different rates of interest, where by the computation of the part of income rightly to be apportioned to $800,000 as an aliquot part of the principal might require reckoning and might be subject to some variation from minute exactness.

Where the testator desired to create separate funds, that purpose is expressed in apposite words. In clause 5 of article 15 he directs the trustees in a certain contingency to withhold a part of two of the annuities, ‘investing such part so withheld in a separate trust fund.’ In article 2, also, are directions to the trustees to hold the proceeds of the sale of the homestead ‘in a separate fund’ during the life of the widow if it is sold.

The nature of the estate left by the testator, largely invested in the publishing house hearing his name, and the directions which involve a continuance of a considerable part of the fund in the same business, would render difficult any just separation of several funds.

The words of gift to the World Peace Foundation express a double limitation: It is (1) of the income of an amount not exceeding eight hundred thousand dollars, and (2) in no event can the annual income exceed $40,000. Both these restrictions can be observed better through a series of years by means of the administration of a larger fund than

[117 N.E. 205]

by the segregation of an amount of securities equalling $800,000 at the beginning but liable to vary materially as time goes on, through almost inevitable changes in the value of investments.

[228 Mass. 168]The testator was a college graduate, and presumably a man of great force, acute intelligence and wide experience, whose life work had been in business closely affiliated with education. He had given prolonged study to the plan for the World Peace Foundation, and had discussed it frequently with his intelligent attorney who drafted the will. The will must be construed giving due weight to the natural inference that words expressive of benefaction for that end were chosen with care for the purpose of disclosing plainly a carefully matured scheme to carry out a long cherished design close to the heart of the testator.

The stray references in clauses 13 and 14 to the ‘$800,000,’ and ‘the fund of $800,000,’ ‘or thereabouts originally set aside’ for the cause of peace are not expressive of the testator's main purpose touching that subject and cannot be taken to supply a requirement omitted elsewhere, that either as matter of...