R.I. Hosp. Trust Co. v. Anthony

• Citation: 142 A. 531
• Decision Date: 27 June 1928
• Docket Number: Nos. 821, 822.,s. 821, 822.
• Parties: RHODE ISLand HOSPITAL TRUST CO. v. ANTHONY et al. SAME v. PERKINS et al.
• Court: United States State Supreme Court of Rhode Island

142 A. 531

RHODE ISLand HOSPITAL TRUST CO.

v. ANTHONY et al.

SAME

v. PERKINS et al.

Nos. 821, 822.

Supreme Court of Rhode Island.

June 27, 1928.

Certified from Superior Court, Providence and Bristol Counties under Gen. Laws 1923, § 4968.

Suits by the Rhode Island Hospital Trust Company against Mary B. Anthony and others, and against Annie A. A. Perkins and others, for instructions as to the disposition of trust estates. Decree in accordance with opinion.

Tillinghast & Collins, William R. Tillinghast, and James C. Collins, all of Providence, for complainant.

Herbert A. Rice, of Providence, for Stockwell, guardian ad litem.

George H. Huddy, Jr., of Providence, for respondent O'Neill.

Greenough, Easton & Cross and Harvey S. Reynolds, all of Providence, for respondents King and Yarnall.

Gardner, Moss & Haslam, Thomag F. Black, Jr., and Edward W. Day, all of Providence, for respondents Anthony and others.

SWEETLAND, C. J. In each of the above-entitled suits in equity the complainant as trustee in seeking instruction as to the disposition of a trust estata.

Each of the causes, being in the superior court ready for hearing for final decree, has been certified to this court for determination. The same questions are at issue in both, and the causes have been heard together.

The first of these suits relates to a trust created by the will of Jane L. Beckwith, late of Providence, who deceased in February, 1889, and whose will was duly probated in the municipal court. The second suit relates to a trust created by an irrevocable deed of trust of Lorania C. Beckwith to the complainant, which deed was executed by her on June 15, 1908, while she was domiciled in Rhode Island. Lorania C. Beckwith died on February 24, 1925. She was a grandchild of said Jane L. Beckwith.

Jane L. Beckwith by her will gave her homestead estate and other property to the complainant in trust to permit her granddaughter Lorania to occupy the homestead and to receive the income from all the trust estate during her natural life, "with the remainder over after her decease absolutely and free of the trust herein created to such person or persons and to such uses and purposes as she shall by last will and testament appoint, and in default of such last will and testament, or other instrument in the nature of a last will and testament, then to any child or children or their descendants of my said granddaughter then surviving, the same to take per stirpes and not per capita." Then follow provisions for the disposition of the trust estate upon the death of Lorania intestate, and without children or other descendants.

Lorania C. Beckwith in said deed of trust provided that the complainant as the trustee named therein should during her life pay over to her such portions of the trust estate as she might request, which would not reduce the principal thereof below $200,000, with the following provision as to the disposition of the trust estate upon her death:

"Upon my death the said trustee shall convey, transfer, deliver, and pay over all of the principal and accumulated net income of said trust estate then in the possession of said trustee to such persons, and in such sums or proportions as I shall by last will and testament direct, discharged of said trust.".

Then follow provisions for the disposition of the trust estate upon the settlor's death without leaving a last will and testament.

On May 22, 1923, at Boston, Lorania. Beckwith made her last will, in which she described herself as of Norfolk, in the county of Norfolk and commonwealth of Massachusetts, and appointed Joseph S. O'Neill, Esq., of Belmont, Mass., as executor. In this will she disposes of certain articles of "personal use," gives a life annuity of $500 to Mary Manton and a legacy of $10,000 to each of her mother's surviving sisters, viz. Frances King and Annie Yarnall. She devised her farm in Massachusetts to Mary B. Anthony, Ellen M. Anthony, and Jane L. Anthony, daughters of her grandmother's sister, Mrs. John B. Anthony. She directed the payment of her indebtedness to the Rhode Island Hospital Trust Company, and then gave the residue of her estate in certain shares to the persons therein named who are all of the living descendants of said Mrs. John B. Anthony. This bequest of remainder is as follows:

"All the rest, residue and remainder of my estate and property, real, personal and mixed, of every kind, nature and description and wherever situate, of which I shall die seized, possessed or entitled, and as to which I shall at the time of my death have the power of disposition (including especially all estate and property as to which I have the power of appointment under the will of my grandmother, Jane L. Beckwith, and under my deed of trust to the Rhode Island Hospital Trust Company, hereinbefore mentioned), I give, devise and bequeath as follows."

Then follows a designation of the beneficiaries and the shares of the residuary estate given to each. The ninth clause of the will is as follows:

"Whereas the greater part of my property is now held in trust by the Rhode Island Hospital Trust Company, hereinbefore named, upon the trust, among others, that said trustee shall upon my decease convey, transfer, pay over and deliver all the trust estate and property then in the possession of said trustee to such persons as I shall by my last will and testament appoint and direct, now therefore, I hereby appoint the legatees hereinbefore named as the persons to whom said trust estate shall be conveyed, transferred, paid over and delivered, and hereby direct said Rhode Island Hospital Trust Company to convey, transfer, pay over and deliver the trust estate and property which shall be in its hands and possession at the time of my decease to the persons and in the amounts herein mentioned, discharged of said trust."

By the terms of her will it was clearly the intention of the testatrix, Lorania C. Beckwith, to appoint the said trust estates remaining at her death to the beneficiaries named in her will.

The first matter as to which the complainant seeks instructions arises by reason of the following circumstance: Shortly before her death, Lorania C. Beckwith went alone to Los Angeles, Cal., and there on February 20, 1025, four days before her death, the respondent Normand Morrison Hodgkin was born to her out of wedlock. It is claimed by the guardian ad litem of this child that the statute of this state in favor of pretermitted children operated to annul the exercise by Lorania C. Beckwith in her last will of the powers of appointment conferred upon her by the two trust instruments involved in these suits. The statute in force at the time of the testatrix's death is as follows (Gen. Laws 1923, c. 298, § 22):

"When a testator omits to provide in his will for any of his children or for the issue of a deceased child, they shall take the same share of his estate that they would have been entitled to if he had died intestate, unless it appears that the omission was intentional and not occasioned by accident or mistake."

The respondents, who are the legatees under the will of Miss Beckwith, contend that, if said statute is applicable to property, in which the deceased parent had only a life interest with a power of appointment over it by will, the facts appearing in evidence indicate that the omission of the testatrix: to provide for this after-born child was intentional and not occasioned by accident or mistake. This court has held that the statute applies to children born after as well as to children born before the execution of a will. Rhode Island Hospital Trust Co. v. Hail, 47 R. I. 64, 129 A. 832. The evidence shows that the testatrix had gone to California for the express purpose of being delivered of the child of which she was pregnant, in order that her condition might be concealed from all persons by whom she was known in the East. It is urged by said respondent legatees that it may well be assumed from the testimony that the expectant birth of this child was constantly present in her mind. She was told by the physician attending her of the seriousness of her condition, and before the operation from which she died he informed her of the possibility of a fatal result. In response to the suggestions of her physician on one or two occasions, Miss Beckwith stated that she did not wish to make a will or change her existing will. The claim is not without force that her action in thus permitting her last will, in which no provision was made for this after-born child, to remain unchanged until her death was intentional and not occasioned by accident or mistake. We do not, however, base our answer to the request for instructions upon those considerations and specifically refrain from making a determination upon this contention of the residuary legatees.

In our opinion the claim of the infant respondent is negatived by the terms of the statute in question. It is the testator's own inheritable estate in which the pretermitted child is to take his share by force of the statute. The property over which a testator has a power of appointment is not a part of that testator's estate. The authority given to the donee of a power does not vest in him any interest or title in the property which is the subject of the power. An appointee under a power, though he be a child of the donee, does not take by descent from the donee, but by purchase from the...