Smith v. Powers, 2349

• Decision Date: 10 November 1955
• Docket Number: No. 2349,2349
• Citation: 83 R.I. 415,117 A.2d 844
• Parties: Phebe A. B. SMITH et al. v. William E. POWERS et al. Eq.
• Court: Rhode Island Supreme Court

Page 844

117 A.2d 844

83 R.I. 415

Phebe A. B. SMITH et al. v. William E. POWERS et al.

Eq. No. 2349.

Supreme Court of Rhode Island.

Nov. 10, 1955.

Grim & Littlefield, Benjamin W. Grim, Providence, for complainants.

William E. Powers, Atty. Gen., Albert J. Hoban, Asst. Atty. Gen., for the State.

Tillinghast, Collins & Tanner, Providence, for respondent Washington Trust Co.

CAPOTOSTO, Justice.

This cause is before us on a certification, under General Laws 1938, chapter 545, § 6, of certain questions of law concerning the construction of a portion of the will of Orlando R. Smith, late of the town of Westerly in this state, deceased

The complainants are the trustees under the will and certain heirs of the testator. The respondents are William E. Powers in his capacity as attorney general of this state, the Washington Trust Company of Westerly as the succeeding trustee named in the will, and certain other heirs. Infants, persons not in being, and individuals in the military service are duly represented. When the cause was ready for hearing on its merits, the following questions were certified to this court for determination in view of the allegations in the answer of the attorney general:

'(1) Does said will create a Charitable Trust?

'(2) Does said will in paragraph marked 'Fourth' authorize and empower the Trustees to sell and convey the premises set forth in the Bill of Complaint free and clear of any trust?'

The bill of complaint is rather unusual and complex in the relief which it seeks. Among other things it prays that the trustees' account annexed to the bill be approved and the trust estate be charged with the balance due them as shown therein; that it be decreed that the trust has failed; that certain specifically described real estate in the trust be sold; that the dower interest of Phebe A. B. Smith, widow of the testator and one of the trustees under the will, be ascertained and paid to her; and that the net proceeds, if any, from the sale of such real estate, which was the only property remaining in the trust, be distributed among the testator's heirs at law.

In view of the pleadings, it is manifest that to determine such complexity of issues the trial justice would necessarily be required to rule on the fundamental question whether the will created a private or a charitable trust. Ordinarily that question is brought to this court by a bill seeking solely the construction of a will or a given part thereof as provided in G.L.1938, chap. 545, § 7. However, in the special circumstances we will entertain the certification under § 6 of that chapter, because it is clear that the above-mentioned basic question is doubtful, important, raised on the record, and requires a ruling thereon by the trial justice before the many other contested issues can reasonably be determined. Rhode Island Hospital Trust Co. v. Davis, 68 R.I. 461, 463, 464, 29 A.2d 647, and cases cited.

In so far as pertinent the undisputed facts in substance are as follows. Orlando R. Smith died November 20, 1932, testate, and without surviving issue. His will, which he executed on January 26, 1932, was probated December 20, 1932. Phebe A. B. Smith and Arthur S. Barber were duly appointed executors. They were also named in the will as trustees of the residuary estate. A final account as executors showing no balance was filed by them in June 1934 and was subsequently approved by the probate court of Westerly. At the time of his death the testator owned and occupied the 'Joshua Babcock House,' so called, which was built in 1734 and allegedly is still in a 'fine state of preservation.' The widow, Phebe A. B. Smith, has continued to occupy that house as her home since the testator's death.

The premises in question are described in the agreed statement of facts as 'located on a two and one-half (2 1/2) acre parcel of land bordering 370 feet on Granite Street in the village of Westerly, R. I. The 'Joshua Babcock House' is located about twenty-five (25) feet from said street and in the southwesterly portion of said parcel. There is, also, a small one-family house located about fifty (50) feet north of said 'Joshua Babcock House' on the same street, together with a large garage and other small buildings.' It is undisputed that the one-family house just mentioned is of modern construction and rented. It further appears that there is no personal property in the trust estate; that the only income in connection therewith is the rent from the small house, which income is 'grossly insufficient to pay taxes, repairs, etc.'; and that the widow has advanced large sums of her personal funds in preserving the property.

A description by metes and bounds of the above-mentioned two and one-half acres of land appears in the bill of complaint and in the copies of two deeds attached thereto as exhibits, reference to which is hereby made for a more particular identification of the premises under consideration. The bill and the deeds show that such property was acquired by the testator at different times as two distinct, although adjoining, tracts of land. Parcel 1 is known as 122 Granite street, and parcel 2, on which the Joshua Babcock House is located, is numbered 124 on that street.

The certified questions involve the interpretation of the second and third paragraphs of the will which read as follows:

'Second: I give and bequeath to my wife, Phebe A. B. Smith, such of my household furniture, books, and personal belongings as she may select.

'Third: All the rest, residue, and remainder of my estate, real, personal, or mixed, of whatsoever nature, to which I may be in any manner entitled at the date of my death I give, devise, and bequeath to my wife, Phebe A. B. Smith, and to her brother, Arthur S. Barber, of Providence, Rhode Island, In Trust, nevertheless, for the following uses, purposes, and trusts:--To pay the income therefrom in quarterly instalments to my said wife, Phebe A. B. Smith, during her lifetime, and upon her decease to distribute the principal of said estate as follows:----

'(a) All the rest and residue of the trust estate, including my real estate, at numbers 122 and 124 Granite Street in the Town of Westerly, with the land both north and south of the same, to the Washington Trust Company, a corporation located in Westerly, and its successors, the real property with the antique furniture and equipment therein to be retained intact and maintained as a memorial and as an example of Colonial architecture and furnishings, to be open to the public for inspection at suitable times and hours, but said property shall not be used as headquarters or a meeting place for any society or organization. It shall not be used as a residence, except the north portion which shall be available for quarters of caretakers. The income from the personal estate producing income, or so much thereof as may be needed therefor, shall be used to maintain the said estate and the antique furniture and equipment in the buildings thereon. In the event the building at number 124 Granite Street known as the 'Joshua Babcock House', shall be destroyed by fire or the elements or partially destroyed so as to render the premises wholly unfit for occupancy and if they shall be so badly injured that they cannot be repaired without exhausting a substantial portion of the income heretofore referred to, said land shall be cleared of the remains of buildings and be laid out as a part for the use and enjoyment of the public under suitable restrictions, the remainder, if any of the personal estate to be reduced to cash and the income therefrom to be used for the maintenance of said land as a park.'

The respective contentions advanced by the complainants and the attorney general are in serious conflict. The Washington Trust Company takes a neutral position. In general complainants contend that the above-quoted provisions of paragraph Third are too uncertain and indefinite to create a charitable trust; that at most the testator intended to establish a private memorial for purely personal reasons; and that a devise of real property for such purpose was invalid because of the rule against perpetuities. In contrast...