Perry v. Brown

• Citation: 83 A. 8,34 R.I. 203
• Parties: PERRY et al. v. BROWN et al.
• Decision Date: 01 May 1912
• Court: United States State Supreme Court of Rhode Island

83 A. 8

34 R.I. 203

PERRY et al.

v. BROWN et al.

Supreme Court of Rhode Island.

May 1, 1912.

Case Certified from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Action by George A. Perry and others, as executors of the will of Julia P. A. Anthony, against Robert P. Brown and others, asking for instructions. Certified from the Superior Court under Gen. Laws 1909, c. 289, § 35. Questions answered.

Tillinghast & Collins, of Providence, for complainants. Claude R. Branch, Edward P. Jastram, and Edwards & Augell, all of Providence, for Robert P. Brown and others, residuary legatees.

Mumford, Huddy & Emerson (Charles C. Mumford, of counsel), all of Providence, for Frederick E. Anthony. Thomas A. Jenckes, of Providence, for respondents Polleys.

Comstock & Canning, Patrick P. Curran, John Henshaw, Livingston Ham, and William W. Douglas, all of Providence, Hugh J. Carroll of Pawtucket, and William P. Fowler, for various other respondents.

PARKHURST, J. This is a suit in equity wherein the bill is filed by the executors and trustees under the will of Julia P. A. Anthony, for instructions on certain questions arising under the will and involving the construction thereof. The case has been certified to this court for its determination under chapter 289. § 35. Gen. Laws, 1909, being ready for hearing for final decree.

The will of Julia P. A. Anthony is entirely in her own handwriting, and consists of 16 pages clearly and neatly written on ordinary legal cap paper. It consists of three clauses, of which the "first" relates solely to directions as to her burial and that of her husband, to headstones, etc. The "second" clause contains directions as to the erection of a certain monument, and the payment of funeral expenses. All these provisions are clear and undisputed. The "third" clause of the will, under which all disputed questions arise, covers the remaining 15 pages of the will, is all in one paragraph, contains many provisions which are somewhat confusing and, at first sight, contradictory and inconsistent with each other. It would seem, from the fact that the testatrix uses much legal phraseology, that she must have had before her one or more wills from which she copied such phrases; but it is evident from the general consideration of the whole will that she was not familiar with the meaning of technical legal terms, and did not intend to use them in their precise technical sense.

This "third" clause opens with a bequest to Swan Point Cemetery Corporation of $2,000 in trust to use income for perpetual care of certain lots, etc. Then follow directions for the sale of enough personal property (within two months after her death) to pay certain specific legacies of money, $1,000 each to six named persons; $500 each to six others; $250 each to two others if living. The will then proceeds as follows, all the words in italics being underlined by the testatrix in the will itself: "The balance and rest, of all my property, real and personal, I give to my dear husband, Frederick E. Anthony, for his personal use, during his natural life, with the exception of some personal properties like jewelry, ornaments or dishes, of which I may make especial provision. Within a week or ten days after my death, I wish my present residence 185 Adelaide avenue to be put in proper condition, as to convenience and safety, so it can be used as a home for my husband, during the balance of his life, or as long as the executors may feel it wise to continue to have him remain in it, with proper care, and attention. One of his peculiarities has been, that however much he might desire to do something, when the time came, he felt he could not then do it, so gentle force may have to be used, to get him to go into the house, but have him if possible understand, it is my wish for him to go there. I would like Mrs. Ora L. Bell to take the position as housekeeper, and companion, at a monthly salary to be deckled by the executors and herself, she to have an assistant to do the cooking, washing, ironing, and perhaps extra help at certain times. If Matthew Baynes should be in my employ, and wish to continue, he is to be retained at forty dollars each month, and his room and board. His work to be to take care of the house inside and out, as he has been accustomed to do, and also give some attention to Mr. Anthony, if the latter should need it at times. Should Matthew Baynes, not be satisfied after giving it a fair trial, he is to receive on leaving five hundred dollars with his wages, but should he remain with Mr. Anthony during his life, he is to then have two thousand (2,000) dollars, for his faithful services to us both. Mr. Anthony, I desire to have, two attendants, a day, and night one, or still another, if necessary for his comfort. If the executors think it wise, I want a reliable doctor to see him once a month, or oftener if necessary. A carriage is to be hired for his use, every suitable day, for a drive of an hour or longer, as he may desire. I want it made possible for him to end his days, in his own home, and wish Mrs. Bell and attendants to keep him interested with games, and card playing if possible. His own income is first to be used for his support, and expenses, and after that the income I leave is for his use, outside of what I have bequeathed to a few persons. Should his own income, and that which I bequeath to him, not be sufficient to give him what he actual needs for himself, attendants, and certain luxuries, his own personal property should first be drawn upon, and if that is used up, the executors are requested to draw what is necessary from the principal of my estate. What I want is to have my husband made as comfortable as possible, with his own property, and all I leave behind me, which I bequeath for his personal use during his natural life. After my death, all the property, I possessed, or am in any way entitled, at such time, shall hereinafter be called, my said trust estate, and shall be held in trust, during the natural life, of my husband, Frederick Eugene Anthony, to be managed in the following manner, in connection with what I have previously written. All income, exceeding, what is necessary for taxes, repairs, incidental expenses, and salary of the trustees, to be credited to my estate, but to be used freely for the benefit of my said husband, whenever his own income, from the estate of the late Henry Anthony, does not prove at times sufficient, from any cause, but always, his own rightful income, is first to be expended, upon him, and then when necessary, falling back, upon the income accruing from my trust estate. I hereby now appoint the following parties, as my executors, and trustees of this my last will and testament namely: My cousin George A. Perry of Galesburg, Illinois, Mrs. Ora L. Bell, of Providence, state of Rhode Island, and my husband's nephew, William Richmond Tillinghast, also of said city, and state, as joint tenants in trust, for them, and the survivors of them, and other the trustees, under these trusts for any time being, all hereinafter called my said trustees, to take charge of, and manage the same. I also give the said George A. Perry, if he feels the position as trustee, would conflict with other interests, and duties, of his own, power to place some one in this position, who would consider the trusteeship, the same as George A. Perry will, if he accepts personally the position. The real estate must be kept in good tenantable repair, and the buildings thereon, for the time being, properly insured against loss by fire, and the personal estate kept invested either in the investments in which the same may be, at the time of my death, without being accountable for any resulting loss in so doing, or from time to time, to change the investments, or any reinvestments, of the same, as my said trustees, shall deem best; and with power to my said trustees at any time, or from time to time to build, or make other improvements, additions, or betterments, upon any part, or parts of the real estate in their discretion, but if this is done, it must be done by changes, not affecting the income from my estate, to be kept intact for the benefit of my said husband; and also, at any time, or from time to time for any of these purposes, or other purposes of the trusts of these presents, or for the payment of the foregoing legacies, or any or either of them, if they shall deem it wiser, so to do, than to sell the personal estate, therefor or for the purposes of reinvestment, to sell, mortgage, or pledge any of my said trust real estate (except my Mathewson street estate now leased for a long term of years, to the Lederer Realty Company, also my estate, cor. of Fountain, and West Exchange streets, now leased to Mr. Isaac Hahn for a long term of years, unless all the reinvestments are to be for the direct benefit of my husband, and if these should not prove sufficient, to assist in carrying out my wishes, he is to have the full benefit of the principal arising from the sale of any of my estate, real or personal) or any of said trust personal estate, and to enter into any contract in respect thereof; With power also at any time or from time to time (providing all trustees agree in writing) to lease any part or parts of the real estate, for fifteen years, or less, with the understanding that if the time comes to close the trust, the lessee, or lessees, shall have one year to make other arrangements, before moving out of, or from location, if sold, and passed into other hands. And my said trustees shall receive, and collect all of the income of all my said trust estate, and shall pay therefrom all taxes, assessments, and other public rates, and charges, all expenses of insurance, and of ordinary repairs, and other expenses upon, or in respect of, or incident to my said trust estate, and the care thereof, and the execution of these trusts, including their, own reasonable...