Slack's Trust, In re

• Decision Date: 07 June 1966
• Docket Number: No. 1245,1245
• Court: Vermont Supreme Court
• Parties: In re John T. SLACK TRUST.

Page 472

220 A.2d 472

126 Vt. 37

In re John T. SLACK TRUST.

No. 1245.

Supreme Court of Vermont.

June 7, 1966.

Fitts & Olson, Brattleboro, Melville Chapin, Boston, Mass., for trustee.

John Parker, Springfield, for estate of one of residuary remaindermen.

R. Lawlor Cooper, Thomas M. Quigley, Springfield, for sons of a deceased residuary remainderman.

Black & Plante, White River Junction, for residuary remainderman and legal representatives of deceased residuary remaindermen as a class under will of testator.

Palmer D. Ainsworth, Springfield, and Christopher A. Webber, Rutland, for estate of testator's widow.

Louis G. Whitcomb, Springfield, for legal heirs of testator.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

BARNEY, Justice.

A residuary legatee predeceased the testator, John T. Slack, without issue. On distribution of the estate the share of the deceased residuary legatee, Ruth Merritt Waite, was decreed to the remaining residuary legatees, or their representatives or estates, as part of the residue of the estate. The widow and certain heirs challenged this distribution, asserting that a lapsed residual legacy should pass as intestate property.

Almost every jurisdiction that has dealt with the problem has announced its allegiance to the rule declaring that a lapsed legacy of part of the residue shall pass as intestate property. Other than its large numerical following, this rule admittedly has little to recommend it. Indeed, some of the more devastating criticisms of the rule have come from courts who declare 'stare decisis' to be their only ground for following it. Wright v. Wright, 225 N.Y. 329, 122 N.E. 213; Gray's Estate, 147 Pa. 67, 23 A. 205; In Re Dunster (1909) 1 Ch. 103. In Oliver v. Wells, 254 N.Y. 451, 457-458, 173 N.E. 676, Justice Cardozo characterized it in the following language:

There is indeed a technical rule, reluctantly enforced by courts when tokens are not at hand to suggest an opposite intention, that a gift of 'a residue of a residue' is not to be augmented by the lapse of another gift out of the general residuum.

In the Oliver case he goes on to find such a 'token' in a clause in the will which states: 'This clause to be construed and considered as the residuary clause of this my last will and testament.' He then states, 'The intention is thus manifest that the gift shall be a dragnet that will cover every interest not effectively disposed of otherwise.' To Justice Cardozo an intention to die fully testate was apparent and was to be implemented. See Waln's Estate, 156 Pa. 194, 197, 27 A. 59. Aitken v. Sharp, 93 N.J.Eq. 336, 115 A. 912, stands for the proposition that the slightest expression of intent by the testator will take a case out of the rule. Residuary clauses will be liberally construed to avoid the rule. Re Baumann's Will, Sur., 97 N.Y.S.2d 478. In re Dunster, supra, (1909) 1 Ch. 103, suggests that the rule defeats the testator's intent in almost every case in which it is applied. As might be expected, the rule has been generally criticized in law reviews and treatises. 6 Bowe-Parker: Page on Wills 98-9, § 50.18; 36 Harvard Law Review 230; 21 Michigan Law Review 485; 31 Yale Law Journal 782; 55 Michigan Law Review 1202.

The comment in 57 Am.Jur. Wills § 1453, p. 977 seems altogether justified:

The principal has evoked considerable dissatisfaction, even among those courts which recognize and follow it, and in a few jurisdictions it has been changed by statute.

Representative statutory changes are Illinois Revised Statutes (1955), Chapter 3, § 200; New Jersey Statutes Annotated (1953), § 3A:3-14; Ohio Revised Code (Baldwin 1953), § 2107.52; Pennsylvania Statutes Annotated, (Purdon 1950), Title 20, § 25.

The policy supporting the rule is not easy to determine. It is of English common law origin and possibly in part represents a vestige of the distinction between devises of real estate and bequests of personalty. It is said that, without this rule, a lapsed residuary legacy passed back into the residue would tend to increase the size of the share of the remaining residual legatees, and, in an extreme case, could give all the residue to one. Skrymaber v. Northcote, 1 Swans. 566, 36 Eng.Rep. 507. How this is substantially different from increasing the share by allowing lapsed specific bequests to pass under the residuary clause is difficult to see. Yet, this is an accepted rule. In re Boyle's Estate, 121 Colo. 599, 221 P.2d 357, 36 A.L.R.2d 1106; 6 Bowe-Parker; Page on Wills 94-5, § 50.16. And to say that because a lapsed legacy is already in the residue it cannot 'fall into' the residue but must 'fall out' of the will is confusing simile for substance. Corbett v. Skaggs, 111 Kan. 380, 207 P. 819, 28 A.L.R. 1230, characterized it as a 'play upon words' in rejecting the rule.

Justice Kingsley Taft, now Chief Justice of Ohio, in an opinion in Commerce National Bank of Toledo v. Browning, 158 Ohio St. 54, 63-64, 107 N.E.2d 120, carefully examined the rule and rejected it for Ohio. By analysis, he exposed the fallacy in its assumption that the residual shares could not be augmented by a lapsed residual share without violating the plan of the will. He then commented:

To say that the testator did not intend to so dispose of the whole of the residue is to disregard what the testator has said in his will, and results in taking part of the residue from those to whom he said it should go and giving it to others to whom he did not say that...