Taber v. Talcott

• Decision Date: 13 June 1917
• Docket Number: No. 398.,398.
• Citation: 101 A. 2,40 R.I. 338
• Parties: TABER v. TALCOTT et al.
• Court: Rhode Island Supreme Court

101 A. 2

40 R.I. 338

TABER

v. TALCOTT et al.

No. 398.

Supreme Court of Rhode Island.

June 13, 1917.

Certified from Superior Court, Providence and Bristol Counties.

Bill in equity by William E. Taber, sole trustee under the will of Hezekiah Allen, against Charles H. Talcott and others. Certified from superior court in accordance with Gen. Laws, c. 289, § 35, submitting questions to Supreme Court. Questions answered and decree directed.

Edward A. Stockwell, of Providence, for complainant. Gardner, Pirce & Thornley and Murdock & Tillinghast, all of Providence (William W. Moss and John A. Tillinghast, both of Providence, of counsel), for respondents Talcott and others. Swan & Keeney, of Providence (Francis B. Keeney, of Providence, of counsel), for respondents Ida J. Clark, and William D., Sarah L., C. Osgood, and C. Elnora Swan.

STEARNS, J. This is a bill in equity brought by William E. Taber, sole trustee under the will of Hezekiah Allen, praying for a construction of the will and other relief incident to a distribution of the trust estate created thereunder, and a discharge of the trustee. By a decree of the superior court the cause was certified to this court, in accordance with chapter 289, § 35, Gen. Laws R. I., and the following questions are submitted to this court:

"(1) Did the said will of Hezekiah Allen give to the persons who answered the description of his heirs at law at his death vested equitable interests in fee in the trust property, or did it give contingent or executory equitable interests in fee to those persons who would answer the description of his heirs at law at the time of the death of the last survivor of his wife and children, if he had just then died intestate and without issue?

"(2) To what class or classes of persons and in what proportions, was it the duty of the trustee under said will on May 8, 1912, to convey the part of the personal property in his possession that represented the personal property that was left by said Hezekiah Alleu to the trustees under his will?

"(3) To what class or classes of persons, and in what proportions, was it the duty of said trustee on said date to convey the part of the personal property in his possession that represented the proceeds of the abovementioned sales of real estate?

"(4) To what class or classes of persons was it the duty of said trustee on said date to convey the said wood lot in the town of Enfield, Conn.?"

The first question is the principal one, and the others are only subsidiary.

Hezekiah Allen, a resident of Cranston, R. I., died in 1872 leaving surviving a widow, Emeline Allen, and three children, Hezekiah Allen, Emily H. Allen, and Elvira E. Allen, five brothers and sisters, and the descendants of two deceased brothers: The widow died intestate in 1879, and each of the children died subsequently, intestate and without issue; Elvira E. Allen, the survivor of the children died May 6, 1912.

The respondents, Charles H. Talcott et al., are the persons, or in some cases the successors in interest of the persons, who, being descendants of brothers and sisters of Hezekiah Allen, answered the description of his heirs at law on May 8, 1912, and as such claim that the equitable estate in remainder to the heirs at law was contingent and did not become vested until the death of the last surviving child, and that they are entitled to a conveyance of all the trust property as it existed at that date. The opposing respondents, C. Osgood Swan et al., claim solely as successors in Interest to the three children of Hezekiah Allen, and assert that an equitable remainder in fee vested in these three children at his death. They are mainly the heirs and next of kin of Elvira E. Allen on her mother's side.

The second clause of the will is as follows:

"Second, I give, devise and bequeath all the rest, residue and remainder of my estate both real and personal of which I shall die seised and possessed and wherever the same may be situate, to Henry J. Spooner, John D. Thurston and Jesse P. Eddy, all of the city of Providence. To have and to hold the same to them and to the survivors and survivor of them and to their successors and assigns. In special trust nevertheless, for the purposes following. The said trustees and their successors in said trust shall receive the rents,' profits, issues and income of the property vested in them as aforesaid and therewith make all necessary repairs and improvements and pay all taxes and other necessary charges and expenses in and about the same and after all such payments and reservations are deducted, shall at such times and places annually and in such proportions as they may deem expedient, pay over the residue of such rents, profits, issues and income to my wife, Emmeline Allen, for and during the term of her natural life, and this provision I make for her in lieu of her dower in my estate. After the decease of my said wife I direct my trustees above named and their successors in said trust to pay over in manner aforesaid, said rents, profits, issues and income (after the deductions therefrom as above provided for) to my three children, Hezekiah Allen, Elvira E. Allen and Emily H. Allen, and upon the decease of one or more of them, to the survivors and survivor of them, equally, and upon the death of the survivor of them or upon the death of my said wife in case she shall survive all my said children, I direct my said trustees and their successors in said trust to discharge themselves of the trust herein created by making full and absolute conveyance of such property and estate as they shall at that time hold in trust under this will, to my heirs at law and to their heirs, executors, administrators and assigns forever."

The trustees, in their discretion, under the advice and direction of the probate court, were authorized to sell any portion of the trust estate, either real or personal, and to reinvest the proceeds in such manner as the trustees should deem most for the interest of said cestui que trust, the reinvested estate to be held by them subject to the same trust. Two of the parcels of real estate located in this state were sold by the trustees by authority of acts of the General Assembly, which provided that the proceeds of the sales should form a part of the trust estate and "be finally disposed of as directed in said will and as if no such sale * * * had been made." A part of the personal property now held in trust represents the proceeds of the sale of these two parcels of land. The third parcel which is mentioned in the will and which is located in Enfield, Conn., still forms a part of said trust estate.

Question 1 presents this issue: Are the heirs of Hezekiah Allen to be determined as of the time of his death in 1872, or as of the time of the death of the surviving life beneficiary, Elvira E. Allen, in 1912? While it is true, as stated by Tillinghast, J., in Ross v. Nettleton, 24 R I. 127, 52 Atl. 677, "that the law favors the 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," nevertheless it has been uniformly held that this preference of the law is subordinate to the fundamental principle of construction that:

"The written expression of the testator, taken in its natural sense and use, and applied to existing facts, must control." Ogden, Petition of, 25 R. I. 373, at page 374, 55 Atl. 933.

For the respondents, Swan et al., the case in Rhode Island principally...