R.I. Hosp. Trust Co. v. Dunnell

• Decision Date: 29 June 1912
• Citation: 83 A. 858,34 R.I. 394
• Parties: RHODE ISLAND HOSPITAL TRUST CO. v. DUNNELL et al.
• Court: Rhode Island Supreme Court

83 A. 858

34 R.I. 394

RHODE ISLAND HOSPITAL TRUST CO.

v. DUNNELL et al.

Supreme Court of Rhode Island.

June 29, 1912.

Motion for Reargument Denied July 31, 1912.

For other definitions, see Words and Phrases, vol. 3, pp. 2558-2561.]

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

Suit by the Rhode Island Hospital Trust Company, trustee under the will of Jacob Dunnell, deceased, against Henry Dunnell and others, for instructions. Case certified to the Supreme Court. Decree ordered.

James Tillinghast, of Providence, for complainant.

Livingston Ham, of Providence, for defendants Henry Dunnell and others. Tillinghast & Collins, of Providence (Coudert Bros., of New York City, of counsel), for defendants Denny.

JOHNSON, J. This is a bill in equity for instructions, brought by the Rhode Island Hospital Trust Company, as trustee under the will of Jacob Dunnell, late of Pawtucket, deceased, certified to this court under Gen. Laws 1909, c. 289, § 35. By the will of said Jacob Dunnell, who died in May, 1886, one-fourth of certain personalty was bequeathed to the complainant, in trust to pay the net income to Sophie B. D. Denny, a daughter of the testator, during her lifetime, and upon her decease to stand seised of the fund "to such uses and in such manner and for such persons as such deceased shall by her last will and testament declare and appoint concerning the same, and in default of such will then in trust for such persons as shall be the then heirs at law of such deceased, of my blood according to the statutes of descent then in force in said state of Rhode Island, such persons to take in the proportions prescribed by the same statutes." Sophie B. D. Denny died in May, 1910, a resident of New York City, leaving a will containing no reference to said power of appointment, or to the fund in the possession of the complainant, but containing the following residuary clauses:

"Fifth. I give, devise and bequeath to my said husband, John T. Denny, one-half of all the rest, residue and remainder of my estate and property, of which I may die seised or possessed, or to which I may be entitled, whether real or personal.

"Sixth. I give, devise and bequeath the other half of such rest, residue and remainder as follows: One-third to my son Thomas Denny, one-third to my daughter Maude D. Denny, and the remaining third as follows, to wit: One-half thereof to my son Thomas Denny, to be used as he may think for the best interests of such of his children as may survive me, but without imposing any trust in respect thereto, and the other half thereof to my grandson Francis C. Dale, if he shall survive me; but if he shall die before me, then such portion shall fall into and be distributed as a part of my residuary estate as hereinbefore provided."

The question presented is whether these residuary clauses of the will of Sophie B. D. Denny operated to exercise the power of appointment given her by the will of Jacob Dunnell. The further question has been argued whether, if the power was not exercised, the trust fund held by the complainant now belongs exclusively to the children and issue of Mrs. Denny, or to all the heirs of Jacob Dunnell.

From the decisions of this court it is clear that under the law of this state as it stood prior to the passage of chapter 203, § 9, Gen. Laws R. I. 1896, the will of Mrs. Denny would not have exercised the power of appointment given her by said will of Jacob Dunnell. Matteson v. Goddard, 17 R. I. 299, 21 Atl. 914; Cotting v. De Sartiges, 17 R. I. 668, 24 Atl. 530, 16 L. R. A. 367; Mason v. Wheeler, 19 R. I. 21, 31 Atl. 426, 61 Am. St. Rep. 734. Thus in Mason v. Wheeler, 19 R. I. 21, at page 22, 31 Atl. 426, at page 427, 61 Am. St. Rep. 734, Matteson, C. J., says: "The rule in relation to the execution of powers, as stated by Mr. Justice Story, in Blagg v. Miles, 1 Story, 446, which may be regarded as a leading case in this country on the subject, is that if the donee of the power intends to execute, and the mode be in other respects unexceptionable, the intention, however manifested, whether directly or indirectly, positively or by implication, will make the execution valid and operative; but the intention must be so apparent and clear that the instrument is not fairly susceptible of any other interpretation. If, considering all the circumstances, the intention be doubtful, the doubt will prevent the instrument from being deemed an execution of the power. It is not necessary, however, that the intention to execute should appear by express terms or recitals in the instrument. It is sufficient if it appears by words, acts, or deeds demonstrating the intention. In the case referred to three classes of cases are enumerated which have been held to be sufficient demonstrations of an intended execution of a power: (1) Where there has been some reference in the will or other instrument to the power; (2) a reference to the property which is the subject on which the power is to be executed; (3) where the provision in the will or other instrument executed by the donee of the power would otherwise be ineffectual or a mere nullity; in other words, would have no operation except as an execution of the power."

In the case at bar it is admitted that there was other property of Mrs. Denny which passed by the residuary clauses, and that a general residue was bequeathed by said residuary clauses, without description of property and containing no reference to the power. Chapter 203, § 9, Gen. Laws 1896, reads as follows:

"Sec. 9. A general devise of the real estate of the testator, or of the real estate of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, shall be construed to include any real estate or any real estate to which such description shall extend, as the case may be, which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power unless a contrary intention shall appear by the will; and in like manner a bequest of the personal estate of the testator or any bequest of personal property described in a general manner, shall be construed to include any personal estate or any personal estate to which such description shall extend, as the case may be, which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will."

This section is a literal copy of section 27 of the English Wills Act (St. 1 Vict. c. 26), and has remained in the statutes unchanged, being now section 9, c. 254, Gen. Laws 1909. The decisions of this court cited supra were in accord with the decisions of the English courts made prior to the passage of the Wills Act. Denn Dem. Nowell v. Roake, 6 Bing. 475, 478; Andrews v. Emmot, 2 Bro. 297; Jones v. Curry, 1 Swanst. 66. In the first of these cases, Alexander, C. B., giving the unanimous opinion of the judges to the House of Lords, says: "There are many cases upon this subject, and there is hardly any subject upon which the principle appears to have been stated with more uniformity, or acted upon with more constancy. They begin with Sir Edward Clere's Case, in the reign of Queen Elizabeth, to be found in the Sixth Report, and are continued down to the present time; and I may venture to say that in no instance has a power or authority been considered as executed unless by some reference to the power or authority, or to the property which was the subject of it, or unless the provision made by the person intrusted with the power would have been ineffectual—would have had nothing to operate upon, except it were considered as an execution of such power or authority." It seems to have been uniformly held that the English law upon the subject was changed by the section of the Wills Act above cited, and that a general residuary clause of either real or personal property will now execute the power, although such clause contains no reference to the power, and although the extrinsic facts before regarded as necessary are entirely absent. Spooners Trust, 2 Sim. (N. S.) 129 (1851); Hutchins v. Osborne, 4 K. & J. 252; Thomas v. Jones, 2 J. & Hem. 475; Scriven v. Sandom, 2 J. & Hem. 743 (1862); In re Powell's Trusts, 39 L. J. Ch. 188; Boyes v. Cook, L. R. 14 Ch. Div. 53; In re Clarke's Estate, L. R. 14 Ch. Div. 423; Freme v. Clement, L. R. 18 Ch. Div. 499; Holyland v. Lewin, L. R. 26 Ch. Div. 266. See, also, Wilday v. Barnett, L. R. 6 Eq. 193.

The English statute had thus received a definite construction long prior to its adoption in this state, and it is a general rule that, where a foreign statute has been so construed, the construction given to it in the jurisdiction of its origin will also be adopted when the statute itself is copied. Thus Durfee, C. J., in Sayles v. Bates, 15 R. I. 342, at page 344, 5 Atl. 497, 498, citing Massachusetts decisions upon the statute there under consideration, said: "Our statute was borrowed from the Massachusetts statute, and should be construed the same way, unless there is some strong reason for construing it differently." Stiness, J., in Miller v. Coffin, 19 R. I. 164, 168, 36 Atl. 6, 8: "When a statute is adopted which has already received a judicial construction, it is to be presumed that it was adopted in view of such construction." See, also, In re O'Connor, 21 R. I. 465, 44 Atl. 591, 79 Am. St. Rep. 814.

But if the Wills Act had not been construed by the English cases, it would still be evident that the law has been changed by the statute. Before the enactment of the statute in question, the rule was "that if the donee of the power intends to execute, and the mode be in other respects unexceptionable, the intention, however manifested, whether directly or indirectly, positively or by implication, will make the execution valid and operative; but the intention...