Starrett v. Botsford, 1459.

• Decision Date: 22 December 1939
• Docket Number: No. 1459.,1459.
• Parties: STARRETT v. BOTSFORD et al.
• Court: Rhode Island Supreme Court

9 A.2d 871

STARRETT

v. BOTSFORD et al.

No. 1459.

Supreme Court of Rhode Island.

Dec. 22, 1939.

[Copyrighted material omitted.]

Certified from Superior Court, Providence and Bristol Counties.

Bill in equity by T. Everett Starrett, trustee, against Elizabeth Goodwin Botsford and others, to construe the will of William P. Goodwin, deceased. Certified from the Superior Court under General Laws 1938, c. 545, § 7.

Decree construing the will.

Stockwell, Chace & Yatman and Elmer S. Chace, all of Providence, for complainant.

Hinckley, Allen, Tillinghast & Wheeler, Frederick W. Tillinghast, and S. Everett Wilkins, Jr., all of Providence, for Botsford et al.

Gurney Edwards, Edward T. Richards, and Edwards & Angell, all of Providence, for Chapin et al.

CONDON, Justice.

This cause was begun by a bill in equity filed in the superior court by the trustee under the will of William P. Goodwin, late of the city of Providence in this state, deceased, against every person who, in his or her own right or as executor of a will or administrator of an estate, has an interest in the question of the proper construction of the fifth, sixth and seventh clauses of the firstmentioned will. The prayer of the bill is for instructions as to the manner in which the complainant as such trustee should now make distribution of the trust estate. When the pleadings were closed and the cause was ready for hearing for final decree, it was certified to this court for determination, under General Laws 1923, chapter 339, sec. 35, now General Laws 1938, chapter 545, § 7.

William P. Goodwin died May 14, 1921 in his sixty-ninth year, leaving the will in question, which was duly probated and the clauses now in question are as follows :

"Fifth: The rest, residue and remainder of my estate, real, personal or mixed, I give and bequeath to my said sister Sarah Jane Goodwin, but in trust nevertheless for the following purposes: viz. To hold such rest, residue and remainder of my estate in trust and to apply the income or use thereof to her own use and benefit so long as she is unmarried with full power to invest and reinvest the same and to sell transfer and deed any of the real estate included in this trust and thereby giving the purchaser a good title thereto and such purchaser shall not be charged with the duty of seeing to the application of the proceeds of any sale of any of the property belonging to my estate.

"Sixth: Upon the day of marriage, or upon the death of said Sister Sarah Jane Goodwin, such part of any estate remaining under the trust created under clause Fifth of this will shall be divided amongst my legal heirs in accordance with the inheritance laws of Rhode Island.

"Seventh: I hereby emphasize the fact that it is the paramount intent of this will to provide for the comfort or necessities of my said sister Sarah Jane Goodwin so long as she lives unmarried even to the consuming of my estate, only intending to dispose of that which may remain after her marriage or death."

The facts are not in dispute. The testator's sister Sarah Jane Goodwin, who was named as executrix of the will, entered upon the performance of her duties as such and set up the trust estate provided for in the fifth clause. She acted as the sole trustee thereof until 1935, when on her petition the complainant was appointed cotrustee with her. He continued to act with her until her death, still unmarried, on December 24, 1938 and is now the surviving trustee. Upon her death it became his duty, under the sixth clause of the will, to divide the principal of the trust estate among the testator's "legal heirs in accordance with the inheritance laws of Rhode Island."

The main question which has arisen between the two groups of respondents, and as to which their interests are adverse to each other, is which of two possible meanings should be given to the above expression, "my legal heirs", as used by the testator in the sixth clause of his will.

By one of these possible meanings, which is advocated by one group, it signified his heirs in the technical legal sense of that term, that is, the persons who at the time of his death would be entitled, under the statute of descent of Rhode Island, to inherit his real estate of inheritance if he died intestate. It is contended by the other group that the testator used the words "my legal heirs" as meaning the persons who, when Sarah Jane Goodwin married or died, would be entitled, under the statute of descent, to inherit his real estate of inheritance, as his heirs, if he had died intestate immediately after the date of the marriage or death of said Sarah Jane Goodwin.

In shorter, though perhaps less technically exact. language, the main question is whether the testator's language should be construed as meaning that his "heirs", among whom the trust estate was to be divided at the marriage or death of Sarah Jane Goodwin, should be determined as of the date of his death or as of the date of her marriage or death.

Counsel for those respondents who would fare better under the latter construction have also contended that, even if that construction be rejected, still at any rate the word "heirs" should not be construed as including the sister herself, because the result of that construction would be that her marriage or death would not merely terminate her equitable estate in the income and use of the trust estate, but would also result in vesting in her or in her estate the legal title to a large share of the principal of what had been the trust estate. We shall consider this third possible construction of the sixth clause of the will after we have considered which of the two first mentioned possible constructions is the correct one.

Whether a testamentary gift vests in interest immediately on the death of the testator depends on the intention of the testator. This intention, however, "is the intention testamentarily expressed; and when the testator uses familiar legal words, he must be presumed to have used them in their ordinary meaning till the contrary clearly appears." (italics ours) Kenyon, Petitioner, 17 R.I. 149, 154, 163, 20 A. 294, 297.

In the will before us the testator states that upon the death or marriage of Sarah Jane Goodwin he wishes what remains of his estate to "be divided amongst my legal heirs in accordance with the inheritance laws of Rhode Island." Nowhere in his will does the testator indicate that he used the word "heirs" in any peculiar sense different from the generally accepted sense of that term. Under such circumstances, we are not at liberty to assume that he must have used the word in a different and special sense merely because by such an assumption we would arrive at what may seem to be a more practical result than is reached if we permit the testamentary language to speak for itself.

Concerning the problem of determining the intention of the testator, it was stated in Harris v. McLaran, 30 Miss. 533, which statement was quoted with approval in Kenyon, Petitioner, supra: "We can only know that intention by referring to the language which he has employed, and to those associated circumstances which the law has declared shall indicate his wishes. The terms 'lawful heirs,' 'right heirs,' and 'heirs' are synonymous. Their signification is fixed by law; and when they are used in a deed or will without any superadded words or phrases, indicating a different meaning, they are always understood to be used according to their legal acceptation."

An heir is one on whom the local law of descent casts the inheritance on the ancestor's death; and, where a testator uses that word in his will, it is presumed, in the absence of a clearly indicated contrary intent in the will, that he used it in that sense. Goodgeon v. Stuart, 50 R.I. 6, 144 A. 670. And it has also been said by this court that: "Under the well-established rules of construction the word 'heirs' is held to refer to the living person or persons holding that relation at the time of the testator's death, in the absence of an intention to the contrary clearly evidenced in the will itself." (italics ours) Dorrance v. Greene, 41 R.I. 444, 451, 104 A. 12, 15. Thus in both of these cases the court lays down the same rule, although in the first-cited case it found that the word "heirs" in the will before it was used by the testator in its generally accepted legal sense, and in the second case it was used in a special sense which was clearly evident from other language in the will.

The burden is plainly on those who argue for a construction that would determine this testator's heirs as of the death or marriage Sarah Jane Goodwin, because such a construction can only arise from language which clearly shows the testator's intent to use the word "heirs" in that special rather than its ordinary sense. The testator's language, in our opinion, does not clearly submit to such a construction. On the contrary, it appears to us that he has used language which quite clearly created a remainder to his legal heirs that vested immediately upon his death. "The law favors vesting of estates immediately upon the death of the testator, and will not regard the remainder as being contingent, in the absence of a clear intent on the part of the testator to that effect * * *." (italics ours) Taber v. Talcott, 40 R.I. 338, 342, 101 A. 2, 4. An intention to defer vesting the remainder is not to be inferred because of the fact that the first taker is one of the class designated to take in remainder. "Nothing is more common than that an estate for life should be given to one to whom a remainder over in fee is afterwards devised." Doe dem. Garner v. Lawson, 3 East 278, 291.

And so in the will before us the fact that Sarah Jane Goodwin, a legal heir of the testator under "the inheritance laws of Rhode Island", took by name in the will a life interest in the same estate affords no clear ground for rejecting the literal, ordinary and legal sense of the word "heirs" and for...