Rhode Island Hosp. Trust Co. v. Johnston

• Citation: 99 A.2d 12,81 R.I. 115
• Decision Date: 18 August 1953
• Docket Number: No. 2186,2186
• Parties: RHODE ISLAND HOSPITAL TRUST CO. v. JOHNSTON et al. Equity
• Court: United States State Supreme Court of Rhode Island

Page 12

99 A.2d 12

81 R.I. 115

RHODE ISLAND HOSPITAL TRUST CO. v. JOHNSTON et al.

Equity No. 2186.

Supreme Court of Rhode Island.

Aug. 18, 1953.

Tillinghast, Collins & Tanner, William M. Sloan, of Providence, for complainant.

Hinckley, Allen, Salisbury & Parsons, Matthew W. Goring, of Providence, Crowe & Hetherington, Thomas Hetherington, of Pawtucket, for executors under will of Lilly H. Johnston.

Edwards & Angell, Kirk Smith, John V. Kean, James K. Edwards and John V. Kean, guardian ad litem, all of Providence, for certain respondents.

Woolley, Blais & Quinn, of Pawtucket, for respondent Memorial hospital.

Swan, Keeney & Smith, H. Seymour Wiley and Francis B. Keeney, Jr., all of Providence, for certain respondents.

William M. Mackenzie, of Pawtucket, for respondents Y. W. C. A. of Pawtucket and Central Falls, The Family Service Society of Pawtucket and Vicinity, Pawtucket Congregational Church, Industrial Trust Co. as trustee under will of Earl H. Roberts; and Lucy M. Roberts.

Walter V. Connly, of Providence, for respondent Pawtucket Boy's Club.

Goodman, Oster & Gorin, Jeremiah J. Gorin, of Pawtucket, for respondent Johnstone and District Nurses Association.

William J. George, of Pawtucket, for respondent Y. M. C. A. of Pawtucket.

CONDON, Justice.

This is a bill in equity for the construction of the will of John Johnston, late of the city of Pawtucket, deceased, and for instructions to the trustee thereunder as to whom and in what proportion it shall distribute the trust property, the trust having terminated. When the cause was ready for hearing for final decree the superior court certified it to this court for our determination pursuant to General Laws 1938, chapter 545, § 7.

The testator died on October 21, 1942 leaving his wife Lilly H. Johnston surviving him. He had executed his will on September 2, 1937. Under the first thirty-one clauses thereof he made pecuniary bequests in specific amounts to numerous individual legatees and to several corporate legatees. In the thirty-second clause he bequeathed to his wife, provided she survived him, $200,000 and also certain parcels of real estate on High and Summit streets in Pawtucket together with household furniture and furnishings in the house on the latter street.

The residue of his estate he devised and bequeathed in the thirty-third clause, the construction of which is sought by the instant bill. That clause reads as follows:

'Thirty-third: The remainder of my property, both real and personal, wheresoever situated, of which I may die seized or to which I may be entitled at the time of my decease, I give, bequeath and devise to the Rhode Island Hospital Trust Company, of Providence, Rhode Island, in trust, to safely invest the same, and to pay the net income thereof in equal quarterly payments to my wife, Lilly H. Johnston, during the term of her natural life; and at the decease of my said wife, Lilly H. Johnston, to pay and distribute the balance of the principal of said trust fund, together with any accumulations thereto belonging, free of all trusts hereunder, as follows: one-quarter thereof to the Memorial Hospital of Pawtucket, and one-quarter to the Young Men's Christian Association of Pawtucket; the remaining two quarters to be divided amongst the personal legatees under this will and the charities and institutions herein named as legatees, in proportion to the amount given such legatees and institutions.'

Lilly H. Johnston died testate on February 18, 1950, thus terminating the trust made for her benefit 'during the term of her natural life.' Thereupon certain questions arose as to whom the trustee should 'pay and distribute the balance of the principal of said trust fund, together with any accumulations thereto belonging * * *.' Those questions have been set out in alphabetical order in paragraph numbered 16 of the bill. For convenience in our consideration of the points raised by the various respondent legatees we shall hereinafter quote each question only when it is reached for treatment.

Certain events that have occurred since the testator's decease, namely, the deaths of several of the legatees prior to the decease of Lilly H. Johnston and the nationalization of health service in Great Britain, have given rise to at least two of the questions. The other questions are not referable to any outside circumstances but are intrinsic in the language of the will itself. Three of such questions relate to what allocation shall be made of income due to come into the trustee's hands or actually in its hands, either by way of interest or dividends, after the death of Lilly H. Johnston. The remaining questions concern the rights of certain legatees to participate in the distribution of the trust fund and to what extent.

The complainant alleges in paragraph numbered 16 of its bill that it 'is gravely in doubt as to the proper construction of the will' as applied to certain problems that have thus arisen concerning the distribution of the assets remaining in its hands as trustee. It further alleges that it cannot safely make distribution of such assets among the proper beneficiaries without first obtaining this court's construction of the will and instructions relative thereto. These problems are set out in said paragraph 16 in the form of ten specific questions.

The first question is as follows: 'a. In the distribution of the remaining two-fourths of the trust estate under the thirty-third clause of the will, should the estates of legatees, or next of kin of legatees who predeceased Lilly H. Johnston share in the distribution?' Under the first thirty-one clauses of the will the testator made thirty-nine pecuniary bequests to several charitable and religious institutions and to a large number of certain named persons most of whom were his and his wife's kin. The personal legacies were expressly conditioned upon each personal legatee surviving the testator. Some of such legatees, although they survived the testator and thereby became entitled to their legacies, predeceased the life tenant, thus raising the above-stated question whether their estates or their next of kin are entitled to share in the disposition of the remainder of the trust estate as personal legatees under the thirty-third clause.

The fundamental question is whether the gift over to the 'personal legatees' vested immediately upon the death of the testator or was postponed until the expiration of the preceding life estate to Lilly H. Johnston. The contention is made that such gift is to the legatees as a class upon the decease of the life tenant and that, since those forming the class could be definitely known only when that event occurred, the gift did not vest until that time.

In view of the fact that those legatees were each specifically named in earlier clauses of the will and not otherwise ruled out by any controlling language therein, we cannot agree with the contention that the testator intended to treat them thereafter as a class under the thirty-third clause. Merely because he did not again name them in that clause but referred to them as 'the personal legatees under this will' did not constitute them as a class. 'The fact that they are all legatees under the same will, is not such a quality, characteristic or relation to the testator that they form a technical class.' 3 Page on Wills (3d ed.) p. 203. This rule has been applied in the following cases and we think it is clearly applicable to the will in the instant case. Worcester Trust Co. v. Turner, 210 Mass. 115, 96 N.E. 132; Bronson v. Pinney, 130 Conn. 262, 33 A.2d 322; In re Hoffman's Will, 201 N.Y. 247, 94 N.E. 990.

However, it is further argued that the testator's intention to postpone vesting is indicated by his direction to the trustee to pay over the balance of the trust fund after the decease of Lilly H. Johnston and divide the remaining two quarters thereof among the personal legatees. Such a direction, it is claimed, calls for the application of the so-called 'divide and pay rule.' That rule has been stated by this court in Rogers v. Rogers, 11 R.I. 38, at page 73, as follows: '* * * where the bequest is made in the form of a direction to pay or divide at a future time, the vesting will be postponed till then, for the reason that, inasmuch as the bequest consists in the direction to pay at a future time, it is in effect a bequest at that time, not an immediate bequest.' But in that case, although the court said it appeared at first blush to fall within the rule, the rule was not applied because they found from a consideration of the whole will that the testator's intention was clearly to the contrary. In that connection they pointed out that the rule was 'to be used simply as a key to the intention' and was not to be applied 'to contravene the intention of the testator, when it is otherwise disclosed.'

Limitations restricting the application of the rule have been stated in other cases. For example in Staples v. D'Wolf, 8 R.I. 74, 118, it was explicitly declared that whether the rule was to be applied was to be determined always by answering first the following questions: 'is futurity annexed to the substance of the gift? if so, the vesting is postponed; or is it annexed to the time of payment only? if so, the legacy vests immediately.' In that case two other rules of construction were also emphasized as tending to restrict the application of the divide and pay rule, namely, (1) the law favors vesting and where a gift is made to a person in esse it vests immediately; and (2) where the gift is of the residue it will be construed to so vest unless 'a very clear intent' to postpone vesting is shown.

In the case at bar we find no such intent. From a reading of the whole will we are of the poinion that the testator merely intended to postpone the time of payment in order to benefit the life estate and that he did not intend to postpone the vesting of the gift in remainder. In other words, he...