Second Bank-State St. Trust Co. v. Weston, BANK-STATE

• Decision Date: 10 May 1961
• Docket Number: BANK-STATE
• Citation: 174 N.E.2d 763,342 Mass. 630
• Parties: SECONDSTREET TRUST COMPANY, trustee, v. Leonard P. WESTON et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 763

174 N.E.2d 763

342 Mass. 630

SECOND BANK-STATE STREET TRUST COMPANY, trustee, v. Leonard P. WESTON et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 10, 1960.

Decided May 10, 1961.

Robert B. Hearne, Boston, stated the case.

Asa E. Phillips, Jr., Boston, for Leonard P. Weston.

Clarence A. Barnes, Boston, for Arthur H. Weston, Jr., and others.

Augustus W. Soule, Jr., John T. Noonan, Jr., Brooklin, for Elise Hopkins Yarnell and others.

Elliott V. Grabill, Douglas L. Ley and Samuel A. Wilkinson, Boston, for Charles C. Wallace, executor.

Bernard I. Kaplan and Sumner Z. Kaplan, Boston, for Adrian Holmes Onderdonk, Jr., and others, submitted a brief.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

Maria E. Vinton (the testatrix), the widow of an inhabitant of Massachusetts, died June 11, 1911, having her domicil in Maryland. Her will, made in 1892 when she was already a widow, described her as of Baltimore. A codicil dated April 28, 1911, is not significant in this case. Her will was allowed in Maryland on July 12, 1911, and ancillary letters were issued in Massachusetts.

By art. Third of her will, ² the testatrix gave the residue in trust to her trustee, William Allen Hayes of Cambridge, Massachusetts. Upon the death of the last of her three daughters to die, the trust fund was to be distributed among the issue of the testatrix's daughters per stirpes, but in the event, which occurred, of the death of all three daughters 'leaving no issue surviving them,' the trust fund (after certain relatively small pecuniary gifts not here in issue) was to 'go to my [the testatrix's] heirs at law.'

In 1918, two individuals were appointed trustees of the residuary trust by the Probate Court for Suffolk County, Massachusetts, and the trust has been administered in Massachusetts. The trust has now terminated by the death of Lillian Vinton, the last surviving daughter. The sole remaining successor trustee has brought this petition for instructions as to the disposition of the trust fund.

The Probate Court entered a decree that the ultimate remainder gift of the trust fund 'to the testatrix's 'heirs at law' means to those persons who were [the] testatrix's heirs at law as of the time of her death, namely her three daughters.' The heirs at law of the testatrix, determined at the death of Lillian Vinton on May 4, 1958, are descendants of the testatrix's parents. They have appealed from the decree of the Probate Court.

From a genealogical chart in the record it appears that, when the will was made in 1892, the testatrix, then a widow, had three living minor daughters, Eleanor, aged thirteen, Lillian, aged eleven, and Pamela, aged nine. She also then had two living married sisters and two living married brothers, some of whom had then living children. Her will makes no mention by name of her brothers or of their or her sisters' issue.

1. The question for decision is whether the ultimate remainder gift 'to my heirs at law' in art. Third (see footnote 2, supra) upon the death of all the testatrix's 'daughters * * * leaving no issue surviving them' is to the testatrix's heirs at law determined at her death in 1911 or at the death in 1958 of Lillian, her last surviving daughter. We first attempt to ascertain the testatrix's intention by interpretation of the language used by her, giving weight to the ordinary meaning of the words used, the context in which they appear, and other relevant evidence, including the circumstances in which the will was drafted. If her intention cannot be ascertained by such interpretation we must have resort to rules of construction.

The term 'heirs at law' as used in art. Third is not directly limited (as would have been appropriate, see Powell, Real Property, § 377, at p. 239) by any express statement of the time as of which or the law by which they are to be determined. In the sentence making the gift, the word 'then' is not used. In the preceding sentence it is used in the sense of 'in that event.' As so used it is without significance in interpretation. See Restatement: Property, § 308, comment o; Simes & Smith, Future Interests (2d ed.) § 734, at p. 204; Am.Law of Property, § 22.60, at pp. 438-439; Powell, Real Property, § 375, at p. 222.

General indications of intention may be gained from the will and the background circumstances. (1) All relevant provisions of the will show that the testatrix's primary concern was with her daughters and their possible issue. (2) The testatrix showed little direct concern about her collateral relatives either in 1892 or at the time of the 1911 codicil, and on each occasion she did not mention by name most of those collateral relatives then living. (3) It is suggested that the provision, for an 'advance' to a daughter of a part of the principal of the trust fund, not exceeding 'one half * * * of the then expectant or presumptive or vested share of such' daughter, might have little meaning unless the daughter as an 'heir at law' could take a share of principal by way of remainder. This provision may be interpreted sensibly and in a practical manner which will accomplish the testatrix's obvious purpose, if it is treated as permitting an 'advance' to a daughter of up to one half of the share of principal from which she may have been currently receiving the income. Upon this interpretation, a daughter would have a vested equitable life interest, which would come within the word 'vested' in the provision. The provision, of course, could conceivably have reference to one half of the amount of principal which she would take as an 'heir at law' by way of contingent remainder, an existing interest in which there may be an expectant or presumptive share, and not only a mere expectancy or possibility. See Simes & Smith, Future Interests (2d ed.) § 2; Am.Law of Property, § 4.1, at p. 407. A more probable reason, however, for the use of the words 'expectant or presumptive' in the provision is the possibility (existing at the date of the will and at the testatrix's death) that a daughter of the testatrix might die leaving a child surviving her prior to the death of the last surviving daughter. Such a child would have had at least an expectant or presumptive share of the trust fund to which the provision for advances could have had application. In view of these considerations, the provision seems of slight assistance in the present problem.

We conclude that the remainder gift to the testatrix's heirs at law was inserted simply to ensure that, if all the earlier dispositions should fail, the intestacy law would 'take its course.' See Whall v. Converse, 146 Mass. 345, 348, 15 N.E. 660; Powell, Real Property, § 372, at p. 196; Am.Law of Property, §§ 22.57, 22.60. The general indications of the testatrix's intention mentioned above, however, give insufficient assistance to enable us, as a matter of interpretation of the language alone and unaided by rules of construction, to determine the time as of which the testatrix intended the intestacy laws to be applied. Accordingly, in deciding what the testatrix meant by the term 'heirs at law,' we consider (a) whether we should apply Maryland or Massachusetts law to its construction, and (b) whether, if Maryland law is applicable, the courts of that State would apply any different rule of construction from our own.

2. Although the testatrix at her death had her domicil in Maryland, she was the widow of an inhabitant of Massachusetts and appointed an inhabitant of Massachusetts as her executor and trustee. It has not been shown by whom the will was drawn or what property the testatrix owned either when the will was made or at her death. She seems to have intended that the trust be administered in Massachusetts so that Massachusetts law would govern matters affecting trust administration. See Boston Safe Deposit & Trust Co. v. Alfred University, 339 Mass. 82, 85-86, 157 N.E.2d 662; Franklin Foundation v. Attorney General, 340 Mass. 197, 203-204, 163 N.E.2d 662; Anna Jaques Hospital v. Attorney General, Mass., 167 N.E.2d 875; ^a Restatement 2d: Conflict of Laws (Tent. Draft No. 5, Apr. 24, 1959) § 298. We are concerned, however, with the construction of a testamentary trust of movables in matters not relating to its administration. The rules of construction at the testator's domicil should be applied in such matters, in the absence of indication that the testator intended some other law to be applied or adopted an instrument drafted under the principles of some other law. See McCurdy v. McCallum, 186 Mass. 464, 468, 72 N.E. 75; Brandeis v. Atkins, 204 Mass. 471, 474-476, 90 N.E. 861, 26 L.R.A., N.S., 230; Phelps v. Mattoon, 310 Mass. 97, 99-100, 37 N.E.2d 127; New England Trust Co. v. Wood, 326 Mass. 239, 242-243, 93 N.E.2d 547; Restatement 2d: Conflict of Laws (Tent. Draft No. 5, Apr. 24, 1959) §§ 299a, 308, and see §§ 295, 306. See also Krell v. Codman, 154 Mass. 454, 457, 28 N.E. 578, 14 L.R.A. 860; Hutchins v. Browne, 253 Mass. 55, 57-59, 147 N.E. 899; Boston Safe Deposit & Trust Co. v. Alfred University, 339 Mass. 82, 85-86, 87, 157 N.E.2d 662; Beale, Conflict of Laws, §§ 251.2, 308.1; Leflar, Conflict of Laws, § 188; Stumberg, Conflict of Laws (2d ed.) pp. 419-426. Cf. Amerige v. Attorney General, 324 Mass. 648, 657-660, 88 N.E.2d 126; Goodrich, Conflict of Laws (3d ed.) § 112. Although this trust had Massachusetts aspects, we find no indication that the testatrix affirmatively intended that the substantive provisions of her will should be construed in accordance with Massachusetts rules. Accordingly, we are remitted to the Maryland law.

3. If we were interpreting the will of a person whose domicil was in Massachusetts, 'heirs at law' would mean heirs at law determined at the death of the testatrix 'unless a contrary intention appears.' Tyler v. City Bank Farmers Trust Co., 314 Mass. 528, 531, 50 N.E.2d 778, 782; New England Trust Co. v....