Sawyer v. Poteat

• Decision Date: 27 July 1959
• Docket Number: No. 2752,2752
• Citation: 153 A.2d 541,90 R.I. 51
• Parties: Ada L. SAWYER et al., Trustees, v. Gordon POTEAT, Adm'r, et al. Eq.
• Court: Rhode Island Supreme Court

Page 541

153 A.2d 541

90 R.I. 51

Ada L. SAWYER et al., Trustees, v. Gordon POTEAT, Adm'r, et al.

Eq. No. 2752.

Supreme Court of Rhode Island.

July 27, 1959.

Gardner, Sawyer, Cottam & Gates, Robert B. Gates, James M. Sloan, III, Providence, for trustees.

Hibbard Richter, Boston, Mass., trustee and complainant, pro se.

Tillinghast, Collins & Tanner, William M. Sloan, Providence, for respondents Paul G. Richter and Hibbard Richter, Ex'rs, Thomas J. Hubbard, Ex'r, and Alice Hale.

Newton, Brodsky & Kiernan, Archibald B. Kenyon, Jr., Providence, for respondent Elizabeth G. Hale.

Haig Barsamian, Swan Messerlian, Providence, for respondent Theodora Gordon Hall.

Swan Messerlian, Providence, for respondent Helen G. Harrell.

ROBERTS, Justice.

This is a bill in equity for instructions relative to the distribution of trust property and the construction of a will. When the cause was ready for final decree it was certified to this court, under General Laws 1956, § 9-24-28, for our determination. The complainants are trustees under a deed of trust executed in 1947. The respondents are persons and legal representatives of persons who claim an interest in the trust property.

Isaac Hale died testate in 1890. By virtue of the residuary provisions of his will a life estate was given to his youngest daughter, Ednah B. Hale, with a remainder to a specified class of his grandchildren. The life tenant Ednah deceased in 1958 at the age of ninety-eight. In 1947 Ednah had created a trust of the property in which she had a life interest under her father's will. The deed of trust executed by Ednah provided that upon her death the trust corpus would be distributed in accordance with the residuary provisions of the will of Isaac Hale.

The will of Isaac Hale, after giving the above-mentioned life estate, provides in part as follows:

'The remainder of my estate, after the determination of my daughter's (said Ednah B. Hale's) estate therein, whether partly by her marriage or wholly by her decease, I give devise and bequeath to my grandchildren as follows, to be and remain unto them their heirs and assigns forever:----

'One third ( 1/3) thereof to the female children of my daughter, Maria Hale Gordon, wife of Rev. A. J. Gordon, of Boston, Mass.; one third ( 1/3) thereof to the female children of my son, Wendell P. Hale, of Providence, Rhode Island; and one third ( 1/3) thereof to the children, irrespectively of sex, of my son Jesse D. Hale, of Denver, Colorado--But, in case my said daughter, Ednah Baker Hale, shall marry and have issue, then my will is that her children, irrespectively of sex, shall share in my estate and that they shall have one fourth ( 1/4) thereof, and each of the other sets of grandchildren one fourth ( 1/4) instead of one third ( 1/3) as above specified--If there shall be no female children of my daughter Maria Hale Gordon, and of my son Wendell P. Hale, living at the time of the determination of my daughter's (said Ednah Baker Hale's) estate, then I direct that the male children of my said daughter and son shall be entitled to their (the female children's) share--It is not my intention to discriminate in my affections for my grandchildren; I love them all equally; those that I have not mentioned herein,--the children of my eldest daughter, Alice Hill,--I consider amply provided for otherwise----'

When Isaac Hale died in 1890 he was survived by eight grandchildren who came within the class specified in the will. Of these surviving grandchildren four were daughters of Maria Hale Gordon, two were daughters of Wendell P. Hale, and two were the children of Jesse D. Hale. Ednah B. Hale never married. At her death in 1958 there were then surviving four grandchildren within the class, including two daughters of Maria Hale Gordon, one daughter of Wendell P. Hale, and one child of Jesse D. Hale.

The trustees request instructions as to which of the respondents are entitled to share in the remainder to the grandchildren. The respondents include those members of the class who are now living and the legal representatives of those grandchildren who, now deceased, survived the testator Isaac Hale. The legal question presented is whether the remainder vested at the time the will took effect or was contingent upon survival to the time of determination of the preceding estate.

Those respondents who urge that the class of grandchildren entitled to share be limited to the survivors of the life tenant contend that the dominant intent revealed by the will was to benefit only those members of the specified class who would be living at the termination of the preceding life estate. They argue that the testator's intention is clear and therefore it is unnecessary to resort to the rules of construction. These respondents also contend that if the rules of construction are resorted to, then those rules require that the remainder be held to have been contingent upon survival of the remaindermen to the determination of the preceding estate.

The respondents who contend that the remainder vested at the death of the testator deny that any clear intent is manifested by the language of the residuary provisions of the will. They point out that the language employed is familiar technical language often construed by the courts and that the interpretation of such language can be made only by resort to the rules of construction. It is argued that under the rules of construction the remainder in the instant case was a vested remainder in grandchildren at the time of the testator's death subject to divestment upon the happening of certain conditions which in fact did not occur.

The gift under consideration herein is a life estate with a remainder to a class subject to open and conditional upon the survival of certain members of the class. It should be noted at the outset that the conditions contained in the bequest did not occur. The life tenant Ednah B. Hale never married, and both Maria Hale Gordon and Wendell P. Hale had female children living at the time of the termination of Ednah's life estate. The problem before us is whether the language which creates the remainder and the language which conditions that remainder upon the survival of the life tenant by certain members of the class discloses an intention on the part of the testator to postpone the vesting of the remainder until the termination of the life estate.

The first principle of testamentary construction is that the court will attempt to ascertain the intention of the testator and give effect thereto. Moore v. Dimond, 5 R.I. 121; Billings v. Gladding, 58 R.I. 218, 192 A. 216; Rhode Island Hospital Trust Co. v. Sanders, 84 R.I. 347, 125 A.2d 100. If the testator's dominant intent is clear from an examination of the whole will, then it is unnecessary to invoke the rules of construction. Industrial Trust Co. v. Wilson, 61 R.I. 169, 200 A. 467. If the rules of construction are resorted to because the testamentary language is ambiguous, the application of those rules is still directed to the determination of intent. Washington Trust Co. v. Arnold, 69 R.I. 121, 31 A.2d 420; Rhode Island Hospital Trust Co. v. Thomas, 73 R.I. 277, 54 A.2d 432. Where a will employs familiar legal language it is presumed in the absence of a clearly indicated contrary intent that the testator used that language in its ordinary legal sense. Starrett v. Botsford, 64 R.I. 1, 9 A.2d 871; Dodge v. Slate, 71 R.I. 191, 43 A.2d 242.

It is argued that the intent of the testator to postpone vesting is clearly manifested in the previously-quoted language. The portions of the quoted provisions which are relied upon are referred to in argument as follows. The phrase 'after the determination of my daughter's (said Ednah B. Hale's) estate' reflects an intent that the gift should not vest until the completion of the life estate. It is further contended that the specification of a particular group of grandchildren indicates a desire to benefit only those individuals within the limited class. Emphasis is also placed upon the phrasing of the condition of survival with respect to the female children of Maria Hale Gordon and Wendell P. Hale.

In our judgment the testamentary language before us does not unequivocally disclose a definite testamentary intent. The phrases in the will which are relied upon are all technical legal terms which have acquired their meaning from the judicial application of the rules of construction. Without resort to rules of law, the language employed could reasonably support either of two conflicting results. Therefore, it is our opinion that the interpretation of such language can be made only by applying thereto the rules of construction. In Re Petition of Norris, 46 R.I. 57, 125 A. 84; Washington Trust Co. v. Arnold, supra; Starrett v. Botsford, supra.

It is well settled that the law favors the immediate vesting of remainders unless there is a clearly indicated intention to the contrary. Staples v. D'Wolf, 8 R.I. 74; In Re Petition of Norris, supra; Starrett v. Botsford, supra. This preference for construing remainders as vested is particularly strong where the remaindermen are in being at the death of the testator or where the remainder is a gift of the residue of the estate. Rhode Island Hospital Trust Co. v. Johnston, 81 R.I. 115, 99 A.2d 12. It has been stated that the test is whether the element of futurity is incorporated into the substance of the gift or concerns the time of enjoyment only. Staples v. D'Wolf, supra, 8 R.I. at page 118.

In our judgment the remainder to grandchildren in the will of Isaac Hale was a vested remainder subject to divestment. Every remainder necessarily contains an element of postponement, and in our view the postponement in the gift before us pertains to enjoyment only and not to the time of vesting. Since the divesting condition did not occur, it is our conclusion that the estates of deceased grandchildren who survived the testator but predeceased...