Redmond v. Rhode Island Hospital Trust Nat. Bank

• Decision Date: 15 May 1978
• Docket Number: No. 76-412-A,76-412-A
• Citation: 386 A.2d 1090,120 R.I. 182
• Parties: Cyril J. REDMOND et al. v. RHODE ISLAND HOSPITAL TRUST NATIONAL BANK, Trustee, et al. ppeal.
• Court: Rhode Island Supreme Court

Page 1090

386 A.2d 1090

120 R.I. 182

Cyril J. REDMOND et al. v. RHODE ISLAND HOSPITAL TRUST NATIONAL BANK, Trustee, et al.

No. 76-412-Appeal.

Supreme Court of Rhode Island.

May 15, 1978.

[120 R.I. 188] Edwards & Angell, John V. Kean, George W. Shuster, Providence, for plaintiffs.

Tillinghast, Collins & Graham, Edwin H. Hastings, Providence, for Rhode Island Hospital Trust Nat. Bank, Trustee U/W/O Mary Isabelle Neilson.

Hinckley, Allen, Salisbury & Parsons, Ronald C. Green, Jr., Stephen J. Carlotti, Silas B. Foot, III, Providence, for Hollis Hunnewell and Harry C. Cushing, IV.

Swan, Jenckes, Asquith & Davis, Andrew H. Davis, Jr., Henry M. Swan, Providence, for Andrew H. Davis, Jr., guardian ad litem and representative of contingent interests with respect to personal representatives of Isabelle Kemp.

OPINION

WEISBERGER, Justice.

This case comes before the court on an appeal from a judgment of the Superior Court dismissing the plaintiffs' complaint filed pursuant to the Uniform Declaratory Judgments Act, G.L.1956 (1969 Reenactment) chapter 30 of title 9. The judgment of dismissal was rendered pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure which authorizes dismissal for "failure to state a claim upon which relief can be granted."

The complaint sought a construction of Clause "SEVENTH" of the will of Mary Isabelle Neilson who died in Newport on May 14, 1928. At the time of her death she was survived by a son, Jules Blanc Neilson, who later died on August 10, 1945. She had given birth to two daughters, Mary Isabelle Hunnewell and Cathleen Vanderbilt Colford, both of whom predeceased her. The testatrix was also survived by three children of her son, Jules Blanc Neilson: namely, Frederic W. Neilson who died August 22, 1937, and was survived by one child, Frederic William Gebhard Neilson, plaintiffs' decedent; Alexander Milburn Neilson who died without issue on September 7, 1938; and defendant Isabelle Neilson who was at the time of hearing alive, under guardianship, unmarried, 67 years of age and without issue.

Clause "SEVENTH" of the will of Mary Isabelle Neilson purported to devise and bequeath the residue of the testatrix' estate in trust and for the benefit of three grandchildren, Frederic W. Neilson, Alexander Milburn Neilson and Isabelle Neilson during their lifetimes and upon the death of any such grandchild for the benefit of his or her issue. In the event that any grandchild died without issue, his or her share would go per stirpes to the issue, if any, of the other grandchildren named in Clause "SEVENTH" of the will. All of the persons named in Clause "SEVENTH" are dead, except Isabelle Neilson, who has no issue. The only issue of the deceased grandchildren was Frederic William Gebhard Neilson, who is also deceased, and of whose will plaintiffs are the executors.

The will makes no provision for disposition of the property considered under Clause "SEVENTH" in the event of a complete failure of issue on the part of the three grandchildren who were the life tenants.

In the complaint the suggestion was made that a reversionary interest or a resulting trust might arise upon the death of the last life tenant in favor of the heirs of the testatrix. The testatrix had three other grandchildren who were not named or referred to in Clause "SEVENTH" of the will: namely, Hollis Hunnewell and Isabelle Kemp, the children of her predeceased daughter, Mary Isabelle Hunnewell; and Cathleen Vanderbilt Arostegui, the sole child of her predeceased daughter, Cathleen Vanderbilt Colford. Isabelle Kemp died without issue on or about July 6, 1965. Cathleen Vanderbilt Arostegui died on January 26, 1944, survived by her husband (whose whereabouts are unknown) and one son, Henry C. Cushing IV, who is still living. In the event of an intestacy as to the remaining portion of the trust estate upon the death of the last life tenant, the plaintiffs' decedent might be entitled to a one-sixth share, depending upon the time of the determination of the identity of the heirs of the testatrix. In the event that the heirs were to be determined as of the date of the death of the testatrix in 1928, plaintiffs' decedent would be entitled to share in the proceeds. In the event that the heirs of the testatrix were determined as of the date of death of the last life tenant, now still living and 67 years of age, the estate of plaintiffs' decedent would not share in the proceeds.

There is presently pending a determination by the Internal Revenue Service concerning the value of the interest of plaintiffs' decedent in the trust property. A subsidiary question relating to this determination, if the heirs of the testatrix are determined as of the time of her death, is whether the interest acquired by the estate of plaintiffs' decedent is a contingent interest or a vested interest. This uncertainty arises from the common law presumption against failure of issue of a living person.

This court has recognized the appropriateness of construing instruments where such construction will be given binding force for federal tax purposes. Industrial National Bank v. Rhode Island Hospital, 99 R.I. 289, 207 A.2d 286 (1965). To a similar effect was a decision of the Supreme Judicial Court of Massachusetts in Billings v. Fowler, 361 Mass. 230, 279 N.E.2d 906 (1972). In the past, the correct procedure for obtaining judicial construction of a will was by way of a suit in Superior Court and certification of the case to this court under § 9-24-28. Gray v. Leeman, 94 R.I. 451, 182 A.2d 119 (1962). The repeal of that section by P.L.1972, ch. 169, § 11, however, leaves the Declaratory Judgments Act as the proper vehicle for bringing a will construction suit like the one before us now.

Under the provisions of § 9-30-6, a trial justice may, in the exercise of sound judicial discretion, refuse to enter a judgment "where such judgment or decree, if rendered or entered, would...