Rhode Island Hospital Trust Co. v. Bateman

• Decision Date: 22 June 1961
• Docket Number: No. 2907,2907
• Citation: 172 A.2d 84,93 R.I. 116
• Parties: RHODE ISLAND HOSPITAL TRUST COMPANY et al., Trustees, v. Jonathan H. BATEMAN et al. Equity
• Court: Rhode Island Supreme Court

Page 84

172 A.2d 84

93 R.I. 116

RHODE ISLAND HOSPITAL TRUST COMPANY et al., Trustees, v. Jonathan H. BATEMAN et al.

Equity No. 2907.

Supreme Court of Rhode Island.

June 22, 1961.

Tillinghast, Collins & Tanner, Colin MacR. Makepeace, Providence, for complainants.

Edwards & Angell, Walter A. Edwards, Ronald R. Lagueux, Providence, for respondent Jonathan H. Bateman.

Sheffield & Harvey, J. Russell Haire, Newport, for respondent William Sidney Bateman, Jr., individually.

Corcoran, Peckham & Hayes, Edward J. Corcoran, Newport, for respondent Dorothy Bateman Beck.

John H. Chafee, Providence, for respondent Horace Palmer Beck, Jr.

John H. Chafee, Providence, guardian ad litem for Melinda Bateman and Bushnell Bird Beck.

Roberts & Coffey, Matthew E. Ward, Providence, for respondent Matthew E. Ward, guardian ad litem for persons not in being, or not ascertainable.

PAOLINO, Justice.

This is a bill in equity for the construction of the fifth clause of the will of William Sidney Bateman, late of the city of Newport, deceased. When the cause was ready for hearing for final decree in the superior court it was certified to this court for our determination in accordance with G.L.1956, § 9-24-28.

The testator died December 6, 1948 and thereafter his will was duly provided in the probate court of the city of Newport. He was survived by a son and a daughter, three grandchildren and one great-grandchild. By the fifth clause of his will, after bequeathing one fourth of his residuary estate to his son, one fourth to his daughter and one sixteenth to her son, he left an undivided seven sixteenths to his trustees in trust with the following directions:

'To divide the same into as many equal shares and separate trust funds as there are children born and maybe [sic] born (WSB) of my said son Sidney, and my said grandson, Horace, the issue of any deceased said children dying before they attain the age of twenty-five years to take per stirpes and not per capita, and to hold and manage those shares and to pay over so much of the net income accruing therefrom to each of said children as my trustees deem necessary, for the care, maintenance, education and support of said children until such time as said children respectively attain the age of twenty-five years; and as and when each of said children attains the age of twenty-five years my said trustees shall pay over, free and discharged of this trust, to him or her the principal of that particular share or trust fund with the accumulated income; and the share in the said particular trust fund of any of such children who may die before he or she shall attain the age of twenty-five years, leaving issue, shall be divided equally among the said issue per stirpes and not per capita; and the share in the said particular trust fund of any of such children who may die before he or she shall attain the age of twenty-five years leaving no issue, shall be divided equally and added to the shares of the surviving children. If all of the said children of my said son and my said grandson die before attaining the age of twenty-five years leaving no issue, then said trust shall terminate and the same shall be paid equally to my said son, Sidney, and to my said daughter, Dorothy, or the survivor, to them, their heirs and assigns forever. If, however, both my said son Sidney and my said daughter Dorothy are not living at that time to take, it being my intent that I shall not die intestate as to any of my property, then and such property of mine as might be deemed intestate shall be paid, free and discharged of all trust, in equal shares to the said charities, their successors and assigns, for their general purposes * * *.'

The complainants Rhode Island Hospital Trust Company and William Sidney Bateman, Jr., the testator's son, are the present trustees. The respondents are the testator's daughter, Dorothy; his son William Sidney Bateman, Jr., individually; Dorothy's son, Horace Palmer Beck, Jr.; William Sidney Bateman, Jr.'s two children, Jonathan H. Bateman and Melinda Bateman; and Horace Palmer Beck, Jr.'s daughter, Bushnell Bird Beck. The minor children Melinda Bateman and Bushnell Bird Beck were represented by a guardian ad litem, and a representative of the contingent interests of persons not in being or not ascertainable, whose interests may be affected by the cause, was appointed pursuant to the provisions of G.L.1956, § 9-14-17.

The testator was an elderly man when he executed his will on August 5, 1948. His descendants at that time were his son and daughter; the two children of his son, Jonathan H. Bateman born May 4, 1935, and Melinda Bateman born April 13, 1946; his daughter's son, Horace Palmer Beck, Jr. born September 27, 1920; and Horace's daughter, Bushnell Bird Beck born July 11, 1948. These descendants are all living and there have been no children born to either William Sidney Bateman, Jr. or Horace Palmer Beck, Jr. since the execution of the testator's will.

The trustees have been administering the trust principal in one fund and transferring the income therefrom in equal shares to three separate funds for the benefit respectively of Jonathan H. Bateman, Melinda Bateman and Bushnell Bird Beck, and have either paid out the income for the benefit of the beneficiary or accumulated and invested it as a part of each separate fund or partly so paid and partly so accumulated and invested it. The trust was originally administered by the testator's son and Chase Page as cotrustees. Upon the latter's resignation the Rhode Island Hospital Trust Company in 1955 was appointed as cotrustee.

It appears that by letter dated June 24, 1955, William Sidney Bateman, Jr., Dorothy Bateman Beck and Horace Palmer Beck requested the trust company to accept such appointment with the following directions:

'* * * until the birth of another child to William Sidney Bateman, Jr. or Horace Palmer Beck to pay or accumulate the trust income hereafter received, and also that heretofore received with due regard for any payments already made therefrom for the account of Jonathan Bateman, for the equal benefit of Jonathan Bateman, Melinda Bateman and Bushnell Bird Beck, until one of them becomes twenty-five or dies under that age.'

They severally agreed to hold the trust company harmless from any loss or damage resulting from its compliance with said request. In addition they agreed in their letter that upon the birth of another child to either William Sidney Bateman, Jr. or Horace Palmer Beck, or upon one of the said Jonathan Bateman, Melinda Bateman or Bushnell Bird Beck attaining twenty-five or dying under that age, the trustees would seek from this court a construction of the will with reference to payment of the income and principal of the trust.

Jonathan H. Bateman attained the age of twenty-five years on May 4, 1960. Because the trustees were in doubt with reference to the payments of principal and income now that one of the beneficiaries has attained the age of twenty-five years, they filed the instant bill in equity for construction of the fifth clause of the will and for instructions of the court in answer to the following questions:

'1.) As to whether one-third of the principal of the trust should now be paid to him [Jonathan H. Bateman], together with any accumulated and accrued income thereon, or whether some part or fraction of said one-third of the principal of the trust and of the income thereon thereafter should be retained by the trustees to provide a fund or a part of a fund for children, if any, of William Sidney Bateman, Jr. and/or of Horace P. [Palmer] Beck, Jr., who may be born in the future; and

'2.) As to whether Jonathan H. Bateman, Melinda Bateman and Bushnell Bird Beck are each entitled to one-third of the trust income received or accrued by May 4, 1960, the date when Jonathan H. Bateman became twenty-five;

'3.) As to who is entitled to the trust income from and after May 4, 1960 and in what proportions and for how long?'

At the hearing in the superior court, besides oral testimony, documentary evidence was introduced relative to the pertinent family facts and to the administration of the trust. The solicitor who drew the will testified about the circumstances surrounding its execution. He stated that, at the request of the testator, the words 'born and maybe born' were inserted in longhand by him and initialed by the testator immediately after the provision for division 'into as many equal shares and separate trust funds as there are children.' He also testified that before the will was signed he wrote at the end of the will just above the testator's signature the statement reading: 'The words 'born and may be born' on second page added before execution.'

In addition he testified as to certain statements made by the testator at the time of the execution of the will in regard to his intention in inserting therein the words 'born and maybe born.' Upon objection by some of the parties the trial justice ruled that such evidence was inadmissible, but permitted the solicitor to be examined relative to such statements so that this court, if it deemed his testimony material to a determination of the testator's intention, might consider it.

These statements were in substance that the testator did not believe that his son would have any more children though it was possible that he would; that there was a possibility that his grandson Horace would have more children since he was a much younger man; and that he wanted all of his grandchildren and great-grandchildren to share alike and therefore wanted to look out for them even though they were not then born. Thereafter the cause, being ready for hearing for final decree, was certified to this court.

The answers to the questions requested depend upon the intent of the testator. As was said in Industrial Trust Co. v. Saunders, 71 R.I. 94, at page 98, 42 A.2d 492, at page 494:

'The primary rule is that the intention of the...