Wash. Trust Co. v. Arnold

Decision Date29 March 1943
Docket NumberNo. 1639.,1639.
Citation31 A.2d 420
PartiesWASHINGTON TRUST CO. v. ARNOLD et al.
CourtRhode Island Supreme Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Washington County; G. Frederick Frost, Judge.

Suit in equity by the Washington Trust Company, executor and trustee under the will of Dr. C. Grant Savage, deceased, against Louis W. Arnold, Jr., individually, and as executor of the will of Caroline Eddy Savage, deceased, and others to require respondent to account for and to turn over to complainant certain realty and personalty, for an injunction, and for other relief. From a final decree granting the principal relief prayed for, named respondent and complainant appeal.

Appeals of both named respondent and complainant denied and dismissed, decree appealed from affirmed, and cause remanded for further proceedings.

Tillinghast, Collins & Tanner and Harold E. Staples, all of Providence, for complainants.

Herbert W. Rathbun and Joseph R. Murray, both of Westerly, for respondent Arnold.

Ronald B. Smith, of Providence, Gdn. ad litem for contingent interests.

FLYNN, Chief Justice.

This is a bill in equity to require the respondent Arnold, individually and as executor of the will of Caroline Eddy Savage, deceased, to account for, and to turn over to the complainant, as executor and trustee under the will of Dr. C. Grant Savage, deceased, certain real and personal property; and also for an injunction and other relief. After a hearing in the superior court on bill, answers, replication and proof, a final decree was entered, granting the principal relief prayed for; and the cause is before us on appeals by both complainant and respondent Arnold from that decree. Since the answers of other respondents joined in the prayers of the bill, we shall refer to Arnold as the respondent.

The following facts are undisputed. Dr. C. Grant Savage died October 12, 1933 in Westerly leaving a will under which the complainant bank is the duly appointed executor and trustee. The testator was survived only by his wife Caroline Eddy Savage, a brother Arthur W. Savage and a sister Neola Hathaway, now deceased.

Caroline Eddy Savage received certain real and personal property, including many stocks and bonds, under her husband's will. Thereafter she leased from the respondent bank, in its corporate capacity a safe deposit box that stood at all times in her name alone. She died on May 1, 1941 in Westerly leaving a will under which the respondent Arnold, her cousin, is the duly appointed executor, as well as the principal beneficiary. This will is in the course of probate.

The will of Dr. C. Grant Savage was drawn by a lawyer and, after providing in the first three paragraphs for the payment of debts, etc., and for the marking of certain graves, continued as follows:

“Fourth. All the rest, residue and remainder of my property and estate, real, personal and mixed, including as well any I may acquire subsequent to the execution of this will, as that of which I am now possessed, and wheresoever located, I give, devise and bequeath to my wife, Caroline Eddy Savage, to her, her heirs and assigns, forever, subject to the following conditions;

“A. I direct that she shall personally keep the property devised and bequeathed to her herein, as a separate account, including the proceeds of the sale of any real estate or personal property, and that she shall have the right to sell the whole or any part of the same, real or personal, at public auction to the highest bidder, or at private sale, for such sum or sums as she shall deem proper, and that she shall have the right to use the principal thereof, or income thereon, as she may desire.

“Fifth. If at the time of the death of my said wife any property, real or personal, remains of the property herein given and devised to my said wife, I give, devise and bequeath the same to The Washington Trust Company, *** to it, its successors and assigns, forever, but in trust, nevertheless, for the purposes hereinafter set forth:-***.”

The trial justice found that the widow was given by her husband's will only a residuary life estate, coupled with broad powers to sell the property and to use the proceeds during her lifetime if she desired, but without power to dispose of any part thereof that might remain at her death. He therefore found that complainant was entitled to such of the property as was not consumed by her in her lifetime, and he accordingly granted complainant's prayers for an accounting by the respondent for all of such property as had come into his control or possession, and for an injunction to prevent his transferring or interfering with any of such property, without further order of the court.

Since all the parties agreed before us that their rights are determinable finally by the proper construction of the will of Dr. C. Grant Savage, we need consider only the respondent's reasons of appeal that involve the final interpretation of that will.

The respondent contends that by devising and bequeathing the real and personal property to his wife “her heirs and assigns, forever”, as appears in the first part of paragraph fourth, the testator thereby vested in her an absolute and unconditional estate in the real and personal property; and that all subsequent provisions purporting to cut down or otherwise limit such absolute and unconditional estate were repugnant and void. He also argues that the provisions following the technical terms of limitation in paragraph fourth are not mandatory but only precatory and may be disregarded entirely. Finally he contends that, even if paragraph fifth may be considered in determining the nature of the first gift, it does not provide for a gift over of a remainder in interest, but that it is premised entirely on the condition if any “remains of the property herein given and devised”, which the widow had the right “to use *** as she may desire”. This language, he argues, is consistent with the absolute character of the gift to the widow and, by implication, confirmed her right to dispose of it by her will.

The answer to these contentions must be found from an examination of the will in the light of well-established rules of construction. The cardinal rule of testamentary construction in this state is to ascertain from the whole will the testator's dominant intent and then to give effect thereto, unless it be contrary to some established rule of law. Cook v. First Universalist Church, 23 R.I. 62, 68, 49 A. 389; Billings v. Gladding, 58 R.I. 218, 192 A. 216; Barker v. Ashley, 58 R.I. 243, 192 A. 304; Meegan v. Brennan, 63 R.I. 298, 7 A.2d 663.

In applying this rule to a will where the testator has used certain technical words of limitation in describing a devise and bequest, such words will be given their ordinary meaning and effect as at common law, unless a contrary intent is clearly manifested by the testator elsewhere in the will. Cook v. Dyer, 17 R.I. 90, 20 A. 243; Kenyon for an Opinion, 17 R.I. 149, 152, 163, 20 A. 294; Perry v. Brown, 34 R.I. 203, 219, 83 A. 8; Buffington v. Work, 61 R.I. 133, 200 A. 541; Starrett v. Botsford, 64 R.I. 1, 6, 9 A.2d 871.

In the instant cause the testator used technical words of limitation in describing the devise and bequest to his wife, “her heirs and assigns, forever”. Such words ordinarily would be adequate to vest an absolute fee simple in the realty and a corresponding title in the personalty, which was largely of an income producing nature. But, in our opinion, the language of paragraph fourth, taken in its entirety and considered with the ultimate gift over appearing in paragraph fifth, clearly manifests the testator's contrary intent. The will as a whole discloses the testator's clear intent to annex certain specified conditions or qualifications to the gift to his wife, and, though giving her broad powers as to its use and sale, to vest in her something less than an absolute and unconditional estate.

The testator did not devise and bequeath the residue to his wife, “her heirs and assigns, forever” and then stop, as respondent's argument would have it. On the contrary, he used the whole paragraph fourth to describe that gift. Therefore, if we are trying to ascertain the testator's dominant intent in...

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9 cases
  • Chile v. Beck
    • United States
    • United States State Supreme Court of Rhode Island
    • 16 Noviembre 1982
    ...... estate in the premises, relied upon the rule of construction found in Rhode Island Hospital Trust Co. v. City of Woonsocket, 48 R.I. 345, 347, 137 A. 411, 412 (1927), which states that when a ... A year later in Washington Trust Co. v. Arnold, 69 R.I. 121, 124, 31 A.2d 420, 421 (1943), this court, in construing a controversy somewhat ......
  • Elder v. Elder
    • United States
    • United States State Supreme Court of Rhode Island
    • 17 Enero 1956
    ......Elder in said real estate as a beneficiary of the trust thereby created and entitle the complainant, Althea M. Elder, to receive a conveyance of said real ... Carpenter v. Smith, 77 R.I. 358, 75 A.2d 413; Washington Trust Co. v. Arnold, 69 R.I. 121, 31 A.2d 420; Barker v. Ashley, 58 R.I. 243, 192 A. 304.         In this ......
  • Lux v. Lux
    • United States
    • United States State Supreme Court of Rhode Island
    • 21 Marzo 1972
    ...... Did Philomena make an absolute gift of it to the grandchildren or did she place it in trust for their benefit? The guardian takes the view that the grandchildren hold the real estate in fee ... See Washington Trust Co. v. Arnold, 69 R.I. 121, 31 A.2d 420 (1943).         When the residuary clause in the instant case is ......
  • Sawyer v. Poteat
    • United States
    • United States State Supreme Court of Rhode Island
    • 27 Julio 1959
    ......        This is a bill in equity for instructions relative to the distribution of trust property and the construction of a will. When . Page 543. the cause was ready for final decree it ... Washington Trust Co. v. Arnold, 69 R.I. 121, 31 A.2d 420; Rhode Island Hospital Trust Co. v. Thomas, 73 R.I. 277, 54 A.2d 432. ......
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