Rotelli v. Jackvony
| Decision Date | 15 July 1976 |
| Docket Number | No. 74-315-A,74-315-A |
| Citation | 116 R.I. 654,359 A.2d 705 |
| Parties | Anthony F. ROTELLI et al. v. Louis V. JACKVONY, Jr., et al. ppeal. |
| Court | Rhode Island Supreme Court |
This civil action for the construction of a will was tried before a Superior Court justice sitting without a jury and it is now here on the defendants' appeal.
Because the transcript of the trial proceedings consists primarily of testimony relating to the testator's dispositive intentions, the pertinent facts are drawn principally from the complaint and the briefs of the parties. They disclose that Antonio F. Rotelli (hereinafter 'testator') died on August 12, 1968, and that his will was admitted to probate on October 7 of that year. The will provision requiring construction is the article creating a residuary trust. 1 It provides that during the lifetime of the testator's widow-who is still living-$15,000 of the net income therefrom shall be paid to her annually, and that the balance thereof shall be paid in as nearly equal shares as possible to his children, Ernest E., Thomas, Rosemarie, Christine R., and Anthony J., 'and their issue, per stirpes, and not per capita.' 2 The clause further provides that upon the wife's death the principal and any undistributed income remaining in the trust should be similarly distributed to the testator's children and their issue.
The children named in the residuary clause survived the testator, but Thomas died intestate 2 years after his father on October 27, 1970. The plaintiffs, Thomas' children, commenced this litigation in 1973, and they joined as defendants the testator's executor, his widow and his four surviving children. The plaintiffs argue that upon their father's death they became entitled to receive the income and principal payments which he would have received, had he lived, and that the payments should be made at the same times they would have been made to him. The defendants, on the other hand, contend that each of the testator's children who survived him, including Thomas, became indefeasibly vested of a one-fifth interest in both the trust income and principal, and that Thomas' interest therein was not divested by his own death. The trial justice adopted plaintiffs' theory and construed the will as requiring that Thomas' income and remainder shares under Article V, sections B and C, respectively, should each be distributed in equal shares per stirpes to his issue living at the several times fixed for the distribution thereof.
An antecedent question to the construction of the disputed will provisions is whether all persons whose interests will be affected by whatever construction is placed upon the will are parties to this proceeding. The rule requiring such joinder exists not only to afford those persons an opportunity to be represented and heard, but also to enable the court to include them by the construction it gives the disputed provisions. See Kirkley v. Bailey, 282 Ala. 115, 209 So.2d 398 (1968); Jennings v. Srp, 521 S.W.2d 326 (Tex.Civ.App.1975); 4 Page, Wills §§ 31.7, 31.12 (Bowe & Parker ed. 1961); cf. Manufacturers Nat'l Bank v. McCoy, 100 R.I. 154, 169, 212 A.2d 53, 61 (1965); Tirocchi v. Tirocchi, 66 R.I. 301, 19 A.2d 7 (1941); Industrial Trust Co. v. Wilson, 58 R.I. 378, 385-86, 192 A. 821, 824 (1937).
This question of joinder was not considered in the Superior Court. We were prompted to raise it, sua sponte, when at oral argument we learned, for example, that Thomas' estate, even though subject to substantial and disparate effects depending upon what theory of construction is adopted, had not been joined. Notwithstanding, the parties in supplementary memoranda attempt to justify nonjoinder by asserting that Thomas' issue are the only beneficiaries of his estate and will therefore take a proportionate share of the testator's residuary trust, both income and principal, irrespective of how the will is construed. But the obvious flaw in that attempt at justification, at least on a record disclosing only that Thomas died intestate, is its failure to take into consideration that Thomas may have left a widow and that there may be unpaid creditors of his estate. Nor can their nonparticipation in the litigation be compensated for by the coincidence that Thomas' daughter Diane, who is one of the plaintiffs, is also the administratrix d.b.n of her father's estate. Not only was she not made a party in that capacity, but as plaintiff she is urging the elimination of her father's estate as a beneficiary under the testator's will and the division of the residual share among herself and her brothers and sisters, a position hostile to that of the widow and creditors. True, this record does not tell us whether Thomas left a widow, nor whether his estate has unpaid creditors, but these are evidentiary gaps which can and should be filled on remand. If the record should then disclose that Thomas' estate, as distinguished from his issue, would benefit by a reasonably possible construction of the testator's will, it would necessarily follow that it should be made a party to the construction of the will. See City Trust Co. v. Bulkley, 151 Conn. 598, 601-02, 201 A.2d 196, 197-98 (1964).
In the course of the hearing relating to Thomas' estate, the Superior Court should also consider whether any other persons are sufficiently interested to require being named as parties and whether a guardian ad litem should be appointed to represent minors, and persons unknown, unascertained or not yet in being. Martin v. Industrial Trust Co., 70 R.I. 374, 377, 38 A.2d 652, 653-54 (1944). In determining whether there are any such interested persons, a group which immediately comes to the fore is the issue, if any, of the four surviving children. Their potential for benefiting from the testator's will is perhaps presently more remote than that of their plaintiff-cousins...
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