Pomroy v. Lewis
| Decision Date | 26 January 1884 |
| Citation | 14 R.I. 349 |
| Parties | GORHAM P. POMROY et al. v. JOSEPH W. LEWIS et als. |
| Court | Rhode Island Supreme Court |
A testator nominated an executor and conferred on him powers and duties which do not belong to an executor, but which are appropriate to a trustee.
Held, in the circumstances, that it was not the testator's intent to annex the powers and duties to the office of executor.
Held, further, that a refusal of the nominated executor to qualify as executor was not a refusal to accept the trusts which were consequently to be executed by him.
BILL IN EQUITY to construe a will. The facts are stated in the opinion of the court.
Joseph C. Ely, for complainants.
This is a bill to obtain a decree, declarative of the rights of the complainant Pomroy, under the last will and testament of Chace Lewis, late of Providence, deceased.
The material portions of the will are the following:
" Second. … and I hereby direct that my executor hereinafter named shall invest the sum of twelve thousand dollars in
such manner as he shall deem safe, and that he shall pay all the interest or income derived from such investments to my said wife during her natural life.
Third. Upon the death of my said wife my will is that the said twelve thousand dollars be kept invested or reinvested by my said executor, and should my said wife die before my grand children Joseph W. and Frank H. Lewis arrive at the age of twenty one years, then the interest and income of said twelve thousand dollars shall be invested, and all accumulations from the investments and the interest and income shall be added to the said sum of twelve thousand dollars until said grand children shall arrive at the age of twenty one years, when my said executor shall pay over the interest or income of such accumulated sums to my said grand children in equal proportion; but upon their, or either of them, arriving at the age of twenty five years, then my will is that my executor pay to my said grand children the whole of said moneys in equal proportion. In case of the death of one of my said grand children before either of them reach the age of twenty five years without leaving issue, then upon the other arriving at said age of twenty five shall receive the whole of said sum; if either of my said grand children shall die before reaching the age of twenty five years leaving issue, then such issue shall receive the share or proportion that would have gone to his father had such father lived to attain the age of twenty five years.
Fourth. Subject to the life estate above created, I give, devise, and bequeath to my executor hereinafter named my said homestead estate No. 206 Clifford Street, and the lot on the corner of Plane and Clifford streets, in said city, said lot being partly occupied, but for the purpose hereinafter named; that my said executor shall manage and control said property, and pay the net income of the same in equal proportions to my said grand children when my said grand children shall arrive at the age of twenty one years respectively, and upon either of my said grand children arriving at the age of twenty five years my said executor shall convey the one half part of said real estate to such grand child, his heirs, and assigns, and shall convey the other one half part and all that remains in his bands at the time of the first conveyance to the other of said grand children, his heirs, and assigns forever; should neither of my said grand children live until twenty five years of age but shall leave issue, then at such time as said grand child so dying would if he had lived have reached the said age of twenty five years, my said executor shall convey to such issue the share of said grand child. My said executor is hereby authorized to lease or to sell the estate on Binney Street in said city, and to lease the estate on Clifford and Plane streets for such terms of years, less than such time as my said grand children shall arrive at the age of twenty five, as he may deem proper… .
Eleventh. I hereby authorize and direct my executor, in his discretion, to pay to my said grand children the sum of one hundred dollars each, or such part thereof as he may judge best, in each and every year.
Twelfth. In case both of my said grand children shall die before reaching the age of twenty five years leaving no issue, then and in that event I give, devise, and bequeath all the property of which I may die seized and possessed, except such devises and bequests I have made to others, " to the several institutions hereinbefore named, and in proportion to the bequests" herein made.
Thirteenth. I...
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