Sherman v. Riley

• Decision Date: 08 July 1920
• Docket Number: No. 479.,479.
• Citation: 110 A. 629
• Parties: SHERMAN v. RILEY et al.
• Court: Rhode Island Supreme Court

110 A. 629

SHERMAN

v. RILEY et al.

No. 479.

Supreme Court of Rhode Island.

July 8, 1920.

Case Certified from Superior Court, Newport County.

Suit by Edward A. Sherman, administrator de bonis non with the will annexed of the estate of John R. Caswell, deceased, against Elizabeth H. Riley and others, for the construction of the will. Case certified for determination to the Supreme Court. Decree directed, answering questions as to the construction of the will.

Hugh B. Baker, of Newport, for complainant.

"Max Levy, of Newport, for respondent Caswell.

Sheffield & Harvey, of Newport, for other respondents.

RATHBUN, J. This is a bill in equity brought in the superior court by the complainant as administrator d. b. n, c. t. a. of

the estate of John R. Caswell to obtain a construction of certain provisions of the will of said John R. Caswell. The case being ready for hearing for final decree was certified to this court for determination under the provisions of section 35, chapter 289, of the General Laws of 1909.

The bill alleges that a question has arisen as to the true intent and meaning of a portion of the second clause of the codicil of said will, which portion reads as follows:

"I further give and bequeath unto my said wife, Mary E. Caswell, one hundred and seventy-one shares of the stock of the General Electric Company, three bonds of the Southern Pacific Railroad Company of five hundred dollars each, one hundred and eighty shares of the capital stock of the North American Company, * * *"

The bill avers that the following questions have arisen under said provisions:

(1) Whether the gift of the shares and bonds to the said Mary E. Caswell under the terms of said will and codicil constitute a general or a specific legacy.

(2) If the same or any of them be specific legacies, who is entitled to the interest and the dividends, including stock dividends accruing or arising from the same prior to the death of the testator but payable thereafter.

(3) If the same or any of them be general legacies, who is entitled to any interest and any of the said dividends, including stock dividends accruing or arising from the same within a year after the death of the testator.

(4) Whether any of said interest in the said dividends, including stock dividends, is apportionable, and, if so, how is the same apportionable?

All parties interested are represented. John C. Riley, an infant under the age of 21 years, by his guardian ad litem, submits his interests to the protection of the court. Albert Kerr was appointed to represent all contingent and unascertained interests and submits all such interests to the protection of the court. The testator's widow, Mary E. Caswell, answers, admitting the allegations in the bill, joins in the prayer for construction, and contends that the gifts to her of shares of stock and bonds constitute a specific legacy. The other respondents answer, admitting the allegations in the bill, join in the prayer for construction, and contend that said gifts constitute a general legacy. From the testimony it appears: (1) That the testator at the time the codicil was executed and at the time of his decease owned exactly three bonds, and no more, of the Southern Pacific Railroad Company; (2) that at the time the codicil was executed the testator owned exactly 171 shares of the stock of the General Electric Company and that at the time of his decease he owned the original 171 shares, and also certain other shares which he acquired after making the codicil; (3) that the testator at the time the codicil was executed and at the time of his decease owned more than 180 shares of the North American Company.

In the text-books and decisions may be found many expressions to the effect that courts do not favor specific legacies, and that a legacy will be held to be general unless something is found to indicate that the testator intended to make a specific bequest. But, as the court said in Thayer v. Paulding, 200 Mass. 98, 85 N. E. 868, quoted with approval by this court in Gardner v. Viall, 36 R. I. 444, 90 Atl. 763:

"A very slight indication of an intention to give shares then in his ownership is enough to make the legacy specific in a case like this."

It appears that the testator bequeathed to his wife all of the Southern Pacific Railroad Company bonds and all of the General Electric Company stock which he owned at the time the codicil was executed. The fact that a testator bequeathed the same number of shares that he owned at the time of the execution of the codicil has been held to indicate an intention on his part to make a specific gift by disposing of the identical stock which he then owned. In Martin, Petr., 25 R. I. 17, 54 Atl. 589, 595, this court used the following language:

"Undoubtedly the fact of the testatrix having an odd number of shares of the Ashland Cotton Company at the date of her will and at her death, exactly corresponding with the number given away, was a circumstance to be taken into account, and that, taken in connection with all the circumstances of this particular will, satisfies us that the testatrix intended that the legatee under the twelfth section was to have that particular stock."

See White v. Winchester, 6 Pick. (Mass.) 48; In re Foote, 22 Pick. (Mass.) 299; Drake v. True, 72 N. H. 322, 56 Atl. 749; Jewell v. Appolonio, 75 N. H. 317, 74 Atl. 250. See, also, Gardner v. Viall, 36 R. I. 444, 90 Atl. 760, which case reviewed the Rhode Island decisions.

The weight of authorities, however, appears to hold a bequest of stocks or bonds which are not designated in any manner in the will, as, for example, "my stock," "stock standing in my name," a general bequest, where nothing appears to show a contrary intention, even although the testator owned at the time the will was executed securities of the kind specified of a larger number of shares or of a larger amount, or even of the same number of shares or the same amount as bequeathed (see cases cited in 40 Cyc. 1875), and there are decisions which hold that such distinguishing words or phrases are not always sufficient to constitute a specific legacy.

In Mahoney v. Holt, 19 R. I. 660, 36 Atl. 1, the testator made bequests of shares of stock to different individuals, using in each bequest the following language:

"I give and bequeath to * * * shares of the common stock of the United States Rubber Co., now owned by me and standing in my name on the books of said company."

At the time the will was made the testator owned more of said shares than he disposed of by these legacies, and bequeathed the rest and residue of said shares to a trustee. Not only was there no residue at the time of the death of the testator, but he did not own a sufficient number of shares to satisfy the other legacies. The court referred to General Laws of 1896, chapter 203, section 6, which provided as follows:

"Sec. 6. Every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall expressly appear by the will"

—and held, following Pearce v. Billings, 10 R. I. 103, that the bequests were not gifts of specific stock, but pecuniary legacies to be measured by the value of the stock one year after the testator's decease, or at the time of payment, if payment should be made within one year.

It has been held that a gift of money and stock in the same bequest indicates an intention to make a specific gift of the stock. See 40 Cyc. 1876. In New Albany Trust Co. et al. v. Powell et al., 29 Ind. App. 494, 64 N. E. 640, the testator made the following bequest:

"To my granddaughter, Willie Trow Foster, the sum of $5,000 in money, and 200 shares of the capital stock of the Madison Gaslight Company of Madison, Indiana."

At the time the will was executed the testator was the owner of 259 shares of the capital stock of the Madison Gaslight Company. At the time of his death he owned but 100 shares. The court held the gift to be a specific legacy.

It is the duty of the court regardless of the particular words or phrases found in the will to so interpret the instrument as to give effect to the testator's intention so far as that intention can be discovered from an examination of the whole will. The second clause of the codicil commences as follows:

"I hereby revoke and annul the provisions set forth in the ninth clause of my said will and in lieu thereof, I give and bequeath unto my wife, Mary E. Caswell, the several articles herein designated in the following named rooms in my home situate on Bull street in said city of Newport, namely" [Here follows a long list of specific articles, the testator identifying many articles of furniture by numbers which they bore and...