Thaxter v. Fry

• Decision Date: 09 September 1966
• Citation: 222 A.2d 686
• Parties: Sidney W. THAXTER et al. v. George Gardiner FRY, Jr., et al.
• Court: Maine Supreme Court

Page 686

222 A.2d 686

Sidney W. THAXTER et al. v. George Gardiner FRY, Jr., et al.

Supreme Judicial Court of Maine.

Sept. 9, 1966.

Thomas Schulten, Portland, Preti, Peabody & Johnson, by Arthur A. Peabody and Robert W. Smith, Portland, for intervenors.

Christopher A. Moen, Jr., Jotham D. Pierce, Portland, for defendant Charles C. Robertson.

Woodman, Thompson, Chapman & Hewes, by Charlton S. Smith, Portland, for defendant Montgomery Blair, Jr.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, RUDMAN, and DUFRESNE, JJ.

MARDEN, Justice.

This is a complaint seeking the construction of certain portions of the Will of Mary J. E. Clapp as those portions pertain to the duration of a testamentary trust and the authority of trustees thereunder in two respects, (a) the authority of the trustees to create a leasehold extending beyond the life of the trust, and (b) the authority of the trustees to creast from income a reserve for depreciation and obsolescence.

In the event it is determined that the trust endures for a period beyond the termination date of the questioned lease, question (a) becomes moot.

Duration of Trust

No citation of authority is necessary to support our declared approach that the chief issue is to be determined from the intent of the testatrix, not to be resovled by a study of separate clauses, sentences, and paragraphs by themselves, but by orienting the problem to the entire instrument.

The Will was of substantial length and disposition covering real and personal estate accumulated by Miss Clapp's forebears of whom she expressed regard reflecting a reverence akin to ancestor worship. An office building, a portion of which is the subject of the question of the lease, and concerning which building the propriety of a reserve for depreciation is raised, was, by direction, constructed by the testamentary trustees as a memorial to the testatrix' parents and grandparents. The prime question has to do with the duration of the trust, of which corpus the memorial real estate is a part. The Will declared in a number of instances an intent that this memorial be lasting, and the ownership of legacies passing under the Will are circumscribed by conditions requiring family retention.

As illustration, a trustee was charged with certain duties concerning the burial place of the grandparents, and Miss Clapp directed that such provisions be carried out for the full period of time which the law might permit 'and, indeed, perpetually, if it may lawfully be done,' she reminding her representatives that such provisions were to her 'the dearest and most important of all matters' for which a will could provide.

In a bequest to a hospital, in trust, the income from the legacy was to be applied 'perpetually' in caring for rooms provided in memory of her parents and a larger bequest to the same institution, in trust, provided for the 'maintaining perpetually' free beds in memory of her grandparents, her parents and herself.

Legacies of personal property passed to legatees with the request that such items 'shall pass from generation to generation in the line of the family * * * to which it properly appertains.'

With relation to real estate, the family home was guarded against 'stranger' occupancy and ownership, and was to be razed and the trustees directed to construct 'a handsome, imposing and substantial block facing Congress Street' in memory of her father and grandfather, and 'especially adapted for occupancy by stores, offices and halls. Inasmuch as the same is to be a memorial block, the Trustees are not to sacrifice to economy or the production of large net income, its architectural character or its complete suitableness to the central and prominent locality which it will occupy, and the Trustees are to bear always in mind that my special desire and directions are that they shall erect and maintain in the best of condition and re-build in case of destruction this building * * *.'

Her controlling declaration of intent, as to beneficiaries, appears in Paragraph 3 in the eighth clause where she says:

'I hereby declare that the only descendants of my grandfather, Asa Clapp, and of my grandmother, Elizabeth W. Q. Clapp, among whom the distribution (of certain personal property) provided in this Article is to be made, and to whom or for whose benefit the net income of the trust in this will provided is to be paid or applied, and among whom the trust estate is to be distributed at the expiration of said trust are the following, viz.: Minna Blair Richey, Woodbury Blair, Gist Blair, Montgomery Blair, Charles Q. Clapp, George Fry, Alfred Fry and Emerson Brooks, and their descendants, and no others, and wherever in this will descendants of my said grandfather and grandmother are mentioned, I wish it to be understood, and I direct that the persons above named, and their descendants, are intended, and that no other person whomsoever shall ever receive any portion of said income or trust estate, except as otherwise expressly provided in this will.' (Emphsis added.)

For purposes of this discussion we call Minna Blair Richey et als. 'named descendants.' The named persons are descendants for the purposes of this Will, not necessarily all inclusive of the descendants of grand parents Clapp.

The relationship of all of the 'named descendants' to the testatrix is not given, but the record discloses that the group included persons from more than one generation.

We shall refer to that portion of Clause Eighth defining 'descendants' as the 'Clause Eight Mandate.' By this mandate both the income beneficiaries and the remaindermen consist of one group made up of the 'named descendants,' including more than one degree of kindred, and their descendants.

This declaration by itself is clear and the controversy over interpretation arises in Clause Twelfth of the Will wherein the residuary trust is established and one paragraph reads as follows:

'The entire net income of the trust, except as otherwise provided in this my last will and testament, shall annually, or oftener, at the discretion of said Trustees, be paid over to or applied for the benefit of the descendants of my grandfather, Asa Clapp, and my grandmother, Elizabeth W. Q. Clapp, hereinbefore in the Eighth Article of this will enumerated (emphasis added), during the period of the entire natural life of the last survivor of such descendants living at my decease as are then or may thereafter become entitled to share in said net income, (emphasis added) and during the additional period of twenty-one (21) years after the death of such last survivor. At the expiration of said twenty-one (21) years all the principal, residue and remainder of the trust fund shall be transferred, * * * to and among such of the afore-said descendants of my said grandfather and grandmother as may then survive, as tenants in common, * * *, each * * * taking the * * * share * * * he or she is at the time entitled to receive of the income aforesaid. Such net income shall be paid over to * * * the aforesaid descendants in the following proportions, namely: In equal shares to such of the grandchildren of my said grandfather and grandmother, that is, to such nephews and nieces of my father, descendants as aforesaid of my said grandfather and grandmother, as may at the time and from time to time be living, and to the issue at the time and from time to time living of any such nephew or niece who have deceased before me or may thereafter decease, such issue taking per stirpes, * * *.'

The identity of 'descendants' has a multiple significance, first as income beneficiaries (Clause Eighth), second as lives in being which fix the duration of the trust (Clause Twelfth), and third as determining ultimate shares of principal.

The meaning of the word 'descendants' as it first appears in the above quotation is clear under the Clause Eight Mandate, but if, as used the second time, the descendants, whose lives govern the duration of the trust, are limited to the 'named descendants,' the Clause Eight Mandate and the cited portion of Clause Twelfth are irreconcilable.

It is urged that under Clause Twelfth the life of the trust was defined as that period of the natural life of the last survivor of the 'named descendants' as might be living at her death, plus 21 years.

The last of the persons named in Clause Eighth died July 23, 1948, which plus 21 years would bring about a termination of the trust on July 22, 1969.

The opposing view is that the life of the trust is to be measured by the period of the natural life of the descendants of the 'named descendants' living at her decease, plus 21 years.

A descendant of those named in the eighth clause was born May 22, 1920 prior to testatrix' death on September 9, 1920, was living at Miss Clapp's decease, and if this natural life plus 21 years brings about a termination of the trust, the trust may well persist into the 21st century.

In instances of apparent repugnancy between two clauses of a will, it is our duty to reconcile them, if possible, considering the entire instrument 57 Am.Jur., Wills § 1128; Page on Wills § 30.10 and the intention of the testator. 57...