Petition of Norris

• Decision Date: 11 June 1924
• Docket Number: No. 619.,619.
• Citation: 125 A. 84
• Parties: PETITION of NORRIS et al.
• Court: Rhode Island Supreme Court

125 A. 84

PETITION of NORRIS et al.

No. 619.

Supreme Court of Rhode Island.

June 11, 1924.

In the matter of the estate of Theodore W. Phinney, deceased. On petition of Samuel Norris, trustee, and others for opinion as to construction of certain provisions of deceased's will. Provisions construed.

Claude R. Branch, Charles G. Edwards, and Edwards & Angell, all of Providence, for administrator of estate of Robert Grosvenor and Afrielle F. Grosvenor.

Sheffield & Harvey, of Newport, for surviving brothers and sisters of Robert Grosvenor.

SWEETLAND, C. J. The petitioners, having adversary interests in questions as to the construction of certain provisions of the will of Theodore W. Phinney, late of Newport, deceased, have concurred in stating such questions in the form of a special case for the opinion of this court. Section 20, c. 339, Gen. Laws 1923.

Theodore W. Phinney died November 29, 1912, and his will was duly probated. The will has been before this court previously for the construction of certain provisions. Robinson for an Opinion, 45 R. I. 137, 120 Atl. 163. In that opinion facts which bear upon the questions here were concisely stated.

The testator left the residue of his estate in trust and directed his trustees, from the income of the trust estate, to pay a certain monthly allowance to the testator's nieces, Anita, Lola, and May Phinney, or to the survivor or survivors of them during their lives for their joint use, to pay a certain monthly allowance to his daughter Alice during her life, and after the payment in full of an indebtedness to his son-in-law, and after a reasonable payment on account of certain mortgages, and a reasonable amount reserved for emergencies, to pay the entire balance of the net income equally to his daughters Rose and Alice during their lives, provided, however that the monthly payments to the daughter Alice should be charged against her share of the net income. If Alice should die before the termination of the trust, the will provided for the disposition during the period of the trust of the share of net income which would have been paid to her if living. Questions arising with reference to her share were before the court in Robinson for an Opinion, 45 R. I. 137, 120 Atl. 163. The will further provides that—

"In case of the death of my daughter Rose before the period of distribution hereinafter named, the share of said net income which would otherwise have been payable to my daughter Rose shall be payable equally to her children, share and share alike."

The will also provides that—

"Upon the death of the survivor of my two daughters and of my three nieces above named, this trust shall terminate, and one-half of my said estate shall be paid to the children of my daughter Rose."

Then follow provisions for the payment of the other half of the estate to the husband and children of the daughter Alice. The will further provides, referring to the children of a deceased child of either Rose or Alice, as follows:

"In all of the above cases, the children of a deceased child shall take the share his or her parent would have been entitled to if then living,— per stirpes and not per capita."

It does not appear explicitly in the case stated, nor in the arguments and briefs of counsel, that the time has yet arrived when, the indebtedness to the testator's said son-in-law having been discharged, the trustees are to pay the entire balance of said net income equally to the daughters Rose and Alice. We assume, however, from the travel of the matter, that prior to the death of Alice in 1918 such time had arrived, and that, in accordance with the terms of the trust, the "entire balance of said net income" was payable in equal shares to said daughters during the remainder of their lives respectively, and that it was so paid. Alice died in 1918; Rose died in 1923; the three nieces are living, and said trust has not yet terminated.

At the time of the death of the testator his daughter Rose was the wife of William Grosvenor, and had seven children. Six of these children survived her. One son, Robert Grosvenor, born April 9, 1892, died October 27, 1918, intestate and without issue. He left surviving his mother and a widow. After the death of the testator William Grosvenor died, and subsequently the daughter Rose married again. At the time of her death her name was Rose Dimond Phinney Wilder.

Upon the death of Rose in 1923 the questions stated in this petition arose. They are as follows:

"(1) Should the one-half of the residue of the net income of the estate of Theodore W. Phinney be divided among the six surviving children of the said Rose Dimond Phinney Wilder, share and share alike, or should said one-half of the residue of said net income be divided into sevenths, one-seventh being payable to the estate of said Robert Grosvenor and one-seventh to each of his surviving brothers and sisters?

"(2) Upon the termination of the trust under the will of Theodore W. Phinney, will the estate of said Robert Grosvenor be entitled' to one-seventh of said half of said estate?"

The proper determination of the first question depends upon whether the gift of one-half of the residue of. the net income after the death of Rose should be held to have vested in the children of Rose upon the death of the testator or to have been contingent until their mother's death. The answer to the second question depends upon whether a gift in the principal of the trust fund vested in the children of Rose at the testator's death or remains contingent, until the time of distribution, upon the termination of the trust.

These questions, with regard to the time of vesting in the children of Rose of the gifts of income and of principal, like most which arise in the construction of wills, are to be determined in accordance with the intention of the testator, if such intention can be gathered from the provisions of the will. In this case it cannot fairly be said that the testator's intention as to the time of vesting is without doubt. To give the opinion sought in the stated case the court must resort to the aid of certain rules of construction. These are not positive rules of law. By their use courts do not purport to discover the testator's intention. They are applied as tests of that intention, when obscure, in order to reach a judicial determination. A rule recognized in our decisions, and enunciated by the court with approval even in those cases in which it might be claimed that its application has not been made, is that the law favors the vesting of estates, and if the intention be doubtful a legacy will, if possible, be held to be vested rather than contingent. Staples v. De Wolf, 8 R. I. 74; Rogers v. Rogers, 11 R. I. 38.

In construing the many differing testamentary provisions which have been before the courts upon the question of vested and contingent remainders the cases are not entirely harmonious. This is true of our own decisions. It was said in Melcher, Petitioner, 24 R. I. 575, 54 Atl. 379, that cases "upon vested and contingent remainders have been too numerous and conflicting for an attempt to review or to reconcile them." In considering the English and American cases dealing with the subject, however, one is less impressed by the conflict than by the extent to which courts have gone in support of the vesting of remainders and by the number of auxiliary rules of construction which have been evolved in aid of the general rule favoring vesting.

One rule of construction is, if futurity be annexed to the substance of a gift, the inference arises that vesting is postponed. If futurity is annexed to the time of possession only, the legacy vests. In support of their claim that the legacies in question were contingent, the children of the testator's daughter Rose who survived her invoke this rule, and urge that from the terms of the gifts, it should be held that in the gift of income the testator intended to postpone its vesting both in interest and in enjoyment until the death of Rose, and as to the independent gift of principal, until the time of the distribution of the estate. We will first consider the claim with reference to the gift of income.

It was argued to us that in creating the remainder in income the testator looked forward to the death of Rose. In his mind that was "the focal point. That was the time when the interests were to be determined." Melcher, Petitioner, 24 R. I. 575, 54 Atl. 379. The soundness of the last proposition is at least doubtful. The testator desired to create a life interest in Rose, with remainder to her children. In the logical statement of the plan, he looked forward into the future, to the death of Rose, as the time when the trustees should begin to pay the income to her children. In the statement of a purpose to create a testamentary remainder a testator's mind is of necessity directed forward to the time of the termination of the prior estate. That circumstance, however, does not warrant the conclusion that the testator did not intend to bestow what Fearne has termed "a present fixed right of future enjoyment," which denotes a vested remainder. In Kelly v. Dike, 8 R, I. 436, the court said:

"In determining questions of this nature, the courts construe the estates as vested, rather than contingent, where the expressions of the will are capable of either interpretation. * * * This disposition on the part of the courts is strongest in the more recent cases."

In the will before us there is not an express gift of income to the children of Rose, but such gift is to be assumed from the direction to the trustees, that in case of the death of Rose before the period of distribution "the share of said net income which would otherwise have been payable to my daughter Rose shall be payable equally to her children share and share alike." There is a rule of construction sometimes applied that when a testator's gift is found solely in a direction to pay at a future time it...