Pearce v. Rickard

• Decision Date: 14 January 1893
• Citation: 26 A. 38,18 R.I. 142
• Parties: PEARCE et al. v. RICKARD et al.
• Court: Rhode Island Supreme Court

26 A. 38

18 R.I. 142

PEARCE et al.

v. RICKARD et al.

Supreme Court of Rhode Island.

Jan. 14, 1893.

Action by Edward D. Pearce and others, executors, against James H. Rickard and others, for instructions as to the distribution of personal estate bequeathed to complainants' testator in trust for the benefit of Sarah C. Rickard and her lawful issue.

James Tillinghast and Theodore F. Tillinghast, for complainants.

Thomas C. Greene, Edwin Aldrich, and Robert W. Burbank, for respondents.

TILLING HAST, J. This is a bill in equity for instructions as to the distribution of certain personal estate bequeathed to the complainants' testator by one Mary E. Helme in trust for the benefit of Sarah C. Rickard, for her life, and at her decease to be paid, transferred, and delivered over to "the lawful issue of the said Sarah C. Rickard, then alive." The bill sets out that Mary E. Helme, formerly of the city of Providence, in this state, died there, leaving a last will and testament dated January 1, 1844, which was on the 30th day of January, 1846, admitted to probate by the municipal court of said city, and now remains of record there, and in full force, by which, among other things, she bequeathed to said Edward D. Pearce. Sr., the sum of $1,000, in trust, in the following language, viz: "Third. I give, devise, and bequeath to Edward D. Pearce, of said Providence, the sum of one thousand dollars, in special trust for the use and benefit of my relative Sarah C. Rickard, wife of George Rickard, of said Providence, for him, the said Edward D. Pearce, to invest in permanent bank or other stock, or in such other manner as he may deem prudent, and to superintend and collect the Income and profits of the same, and, after deducting all taxes and expenses from the income and profits of said trust property, to pay over the balance, as often as once in each year, to said Sarah C. Rickard, upon her sole and separate receipt therefor, and for her sole use and benefit, for and during her natural life; and at the time of her decease the said Edward D. Pearce shall pay, transfer, and deliver over the said trust property then remaining to the lawful issue of the said Sarah C. Rickard, then alive." The bill further sets out that said Edward D. Pearce, Sr., accepted said trust, and at the time of his death, on the 20th day of January, 1883, held the said trust property invested, and standing in his name, as trustee, in 10 shares of the capital stock of the National Pacific Bank of Pawtucket, and 8 shares of the capital stock of the Fifth National Bank of said Providence, and that said stocks have come to the possession of the complainants as executors of his will, and are held by them under and for the purposes of said trusts. That said Sarah C. Rickard died on the 16th day of November, A. D. 1891, having had and received all of the income of said trust property during her life, as provided in thesaid will of Mary E. Helme, and leaving as her lawful issue, at her death, James H. Rickard, Sarah H. Randall, George S. Rickard, and Elizabeth Estelle Rickard, her children; and grandchildren, four children of the said James H. Rickard, and three children of the said George S. Rickard,—and that these, her said four children and seven grandchildren were all of the issue of the said Sarah C. Rickard who were living at the time of her death. That the complainants are desirous that said trusts should be executed, and said trust property divided out and distributed, as provided therein, but questions have arisen as to how the same shall be done,—whether said stocks shall he transferred directly into the names of the said issue of Sarah C. Rickard, or shall be sold, and the proceeds thereof divided among said issue, and, in either event, in what proportions the said issue are entitled to the same. The bill prays for instructions in the premises. The answer of the respondents Jonathan C. Randall, Sarah H. Randall, his wife, and Elizabeth E. Rickard admits the allegations contained in said bill, and claims that the intention of the testatrix, Mary E. Helme, was that the issue of Sarah C. Rickard, upon the decease of said Sarah, should take the trust estate in said bill mentioned, per stirpes, and not per capita, and that, therefore, they, being each one of the four children of said Sarah C. Rickard living at her decease, are entitled to have and receive one fourth each of said trust fund, and were so entitled at and upon the death of their said mother, Sarah C. Rickard, under the said will of said Mary E. Helme. Said James H. Rickard and George S. Rickard have entered no appearance in the case. The answer of the other respondents, viz. James H. Rickard, George W. Rickard, Alice B. Rickard, Mary E. Rickard, Alexandria Rickard, Everett B. Rickard, and Hortense Rickard, the same being the grandchildren of said Sarah C. Rickard, and all being minors, and appearing by their guardian ad litem, Thornas C. Greene, Esq., simply submits their rights and interests in the matters in question to the care and protection of the court.

The main question raised by the pleadings, therefore, is whether the word "issue," as used in the clause of said will above quoted, should be restricted to the children of said Sarah C. Rickard, all of whom, it is to be observed, are still living, or should be construed to include her said grandchildren, also. There is some conflict of judicial authority regarding the signification of the word "issue" when used in a will, where nothing appears to limit the legal import thereof; some authorities holding that in such case the word is synonymous with "child" or "children," while others hold that it is a word of purchase, and not of limitation, and hence includes all the descendants in being at the time the term becomes operative. The cases in England upon this subject are very unanimous in support of the doctrine that the word "issue," unconfined by any Indication of Intention, includes all descendants, and that intention is required for the purpose of limiting the sense of that word, restraining it to children only. Leigh v. Norbury, 13 Ves. 340; Cook v. Cook, 2 Vern. 545; Bernard v. Mountague, I Mer. 422, 434; Haydon v. Wilshere, 3 Term R. 372; Hockley v. Mawbey, 1 Ves. Jr. 143, 150; Davenport v. Hanbury,3 Ves. 257; Carter v. Bentall, 2 Beav. 551; Freeman v. Parsley, 3 Ves. 421; Slater v. Dangerfield, 15 Mees. & W. 263; Pope v. Pope, 14 Beav. 591, 594; 11 A mer. & Eng. Enc. Law, 870, tit. "Issue Includes Descendants," and cases cited. See, also, 1 Jarm. Wills, 89; 2 Williams, Ex'rs, 999; Redf. Wills, part 2, 355 et seq. And while the later English cases seem to manifest a bias on the part of the courts against so broad a construction of the word "issue," by ingrafting a great number of exceptions upon said rule, and by seizing upon very slight indications of an intention on the part of the testator to limit the meaning of said term, yet we find no English case which assumes to lay down a doctrine contrary to the general rule as above stated. In this country, while the decisions are not so uniform a9 those in England in support of said rule, yet the decided preponderance of authority is in favor thereof. The case of Wister v. Scott, 105 Pa. St. 200, 213, is a good illustration of the class of cases which adopts said rule. In that case after devising "Prospect Hill" lot to his daughters Catharine and Sarah "for and during all the term of their natural lives, and the...