Rogers v. Rogers

• Decision Date: 08 June 1874
• Citation: 11 R.I. 38
• Parties: HENRY B. ROGERS et al. v. DANIEL ROGERS et als.
• Court: Rhode Island Supreme Court

11 R.I. 38

HENRY B. ROGERS et al. v. DANIEL ROGERS et als.

Supreme Court of Rhode Island.

June 8, 1874

Residuary testamentary disposition as follows Twelfthly, I do hereby give, bequeath, and devise to my brother Daniel Rogers in trust, with power to name and appoint a successor or successors, all the residue and remainder of my estate, real, personal, and mixed, not herein otherwise bequeathed and devised, to have and to hold the same for the following purposes, viz.: In the first place and before any other claims on this fund are satisfied, to pay any deficiency each and every year it occurs on the three thousand dollars per year given to my wife Maria Rogers under the fourth bequest of this will. In the second place, to divide all the remainder of the property hereby devised and bequeathed after the decease of my wife Maria Rogers and before his own decease (if he so chooses to do) equally between his eight children now living, or their legal heirs per stirpes and not per capita, if any of them be dead when this bequest takes effect, and to trustee all or any part of the property so divided among his eight children or their heirs-at-law through his blood, by placing it safely in the hands of two or more honest and competent persons to hold and pay the income thereof to his eight children, or their heirs-at-law through his blood, per stirpes and not per capita as it is received and that part of it which may belong to his daughters, married or single, to be so trusteed as that the income thereof shall be paid to them or either of them on their own receipt, and after the same shall have accrued, and without the intervention of any creditor or husband, and all the property so trusteed on the said daughters' decease to descend to their own children, or in default thereof to their heirs-at-law through their father's blood, per stirpes and not per capita, and I do hereby devise and bequeath the same accordingly.

Held, that neither the delay in the division of the residuum, nor the fact that the persons who are to take are to be fixed by reference to the time when this bequest takes effect, nor the powers given Daniel Rogers to trustee the property divided, prevented the beneficial interests from vesting and from becoming vested estates at the testator's death.

Held, further, that the testator's widow consenting, the beneficiaries desiring it, and the trustee wishing it, a decree might be entered giving the sanction of the court to an immediate division.

Held, further, that the trustee might relinquish his power to create new trusts after the death of the testator's widow.

One of the eight children of Daniel Rogers living when the will was made died before the testator childless and intestate.

Held, that his share passed to his brothers and sisters as a substitutional gift.

Another of the said children being a married woman.

Held, that her wishes as to a settlement should be consulted.

The intention of the testator must govern the construction of his will if such intention can be ascertained.

Estates are construed to be vested unless the will creating them contains some provision which requires them to be contingent, or unless the testator's language clearly denotes contingency.

BILL IN EQUITY to obtain a judicial construction of the will of Robert Rogers, and to fix the rights of the parties in interest under it.

In 1862 Robert Rogers made the will in question. At that time, he was seventy years of age, and his wife was sixty-seven. He had no children or issue living; neither had he any near relatives living except his brother Daniel, and his said brother's eight children. Of these six were sons, and two were daughters. One of the sons, James S., died unmarried and intestate before the testator. When the will was made, one of the daughters was married and one was single. The single daughter subsequently married and died after the testator's death, leaving a husband and an infant daughter. The ages of these nieces and nephews, at the time the will was made, ranged from forty-six to twenty-two years. The testator died in April, 1870, childless.

In the first clause of his will he directed the payment of his just debts. In the second clause he gave to his wife, outright, all his furniture, plate (excepting that belonging to his late mother), his horses and carriages, and all the farming stock and farming utensils on the farm at Papoose-Squaw Point, which was his residence at the time of his death, and which was the property of his wife. In the third clause he gave to his wife, outright, the half of a lot of land, the other half of which was owned by her sister, and he also directed that whatever stood to his wife's credit on his ledger should be paid to her. In the fifth clause of his will the testator made a specific legacy to his cousin Seraphine E. Noyes of certain indebtedness. In the sixth clause he gave to Martha C. Foster, a quasi ward of his, who had for years resided in his family, the income of fifty-five shares of stock in the Providence and Worcester R. R. Co. during her life, and after her death, the stock to Robert Rogers Howard. In the eighth clause the testator gave to said Robert R. Howard all indebtedness due from him to the testator. In the ninth and tenth clauses the testator gave to certain cousins of his of the Noyes family certain indebtedness due him from them. In the eleventh clause he gave to Wm. Henry Mosher, a former shipmaster of his, the income for life of fifty shares of Webster Bank stock, and at said Mosher's death the stock to Robert R. Howard.

The fourth, seventh, twelfth, and thirteenth clauses of the will are as follows: -

" Fourthly . I do give and bequeath to my executors hereafter named, in trust for the use and improvement of my wife Maria Rogers, during her natural life (the income or dividends on which only are to be applied and appropriated to her use and benefit), and in lieu of all claims of dower on any part of my estate, viz.: two hundred full shares of the stock in the Bank of Commerce in the city of New York; one hundred shares of the stock of the Bank of the State of New York in the city of New York; one hundred shares of the stock in the Hartford and New Haven Railroad Company; one hundred and twenty shares of the stock of the New York and New Haven Railroad Company; one hundred and seventeen shares of the stock in the Boston and Providence Railroad Corporation; one hundred and forty-two shares in the Old Colony and Fall River Railroad Corporation; all of which stocks, at their par value, amount to seventy-seven thousand and nine hundred dollars; and after my wife's decease it is my will that fifteen hundred dollars per year of the income or dividends of the stocks aforesaid be paid to Charlotte D'Wolf, her sister, during the term of her natural life, and that the remainder of said income or dividends be divided equally among the children of my brother Daniel Rogers, or their legal heirs-at-law, until the decease of the said Charlotte D'Wolf; and that after that event the said stocks be equally divided among the children of my brother Daniel Rogers, or their legal heirs-at-law, or held in trust by my said brother, with power of naming substitutes at his option, and I do bequeath the same accordingly. And I do desire furthermore and do hereby order and direct that in case the aforenamed bank and railroad stocks, or those which may be hereafter substituted for them, do not produce in dividends or income each and every year of my wife Maria Rogers's life after my decease the sum of three thousand dollars, that the amount which the said dividends or income may fall short of that sum be paid to her by my residuary legatee, Daniel Rogers, in trust, out of the residue of my estate not specifically and unconditionally given away, at the expiration of each and every year that such deficiency may occur.

Seventhly . I do hereby give and bequeath in trust to Henry A. Rogers, of Providence, with the power of appointing successors or substitutes, for the benefit and use of Robert Rogers Howard, now of Kalamazoo, Michigan (who was named by my late honored mother, with a request that I would liberally provide for him), one hundred full shares of the stock of the Bank of Commerce in the city of New York; fifty shares in the Bank of the State of New York in the city of New York; one hundred shares in the Old Colony and Fall River Railroad; one hundred shares in the New York Central Railroad; one hundred and twenty-five shares in the Eastern Railroad of Massachusetts; one hundred and twenty-five shares in the Northern Railroad of New Hampshire, the dividends or income on which bank and railroad stocks to be paid to the said Robert Rogers Howard during his life, and after his decease to be equally divided among his lawful issue, or their lawful children; if any or all of his children be dead, " ‘ per stirpes ' and not ‘ per capita .’ But in case said Robert Rogers Howard dies without lawful issue, then all said stocks are to be divided equally among the children of my brother Daniel Rogers, now living, and their legal heirs-at-law through their father's blood, ‘ per stirpes ' and not ‘ per capita ,’ and I do give and bequeath the same accordingly.

Twelfthly . I do hereby give, bequeath, and devise to my brother Daniel Rogers, in trust, with power to name and appoint a successor or successors, all the residue and remainder of my estate, real, personal, and mixed, not herein otherwise bequeathed and devised, to have and to hold the same for the following purposes, viz.: In the first place and before any other claims on this fund are satisfied, to pay any deficiency each and every year it occurs on the three thousand dollars per year given to my wife Maria Rogers...