306 Mass. 572 | Mass. | 1940
This is a suit in equity in which the petitioners, who are the trustees under the will of Edward M. Coats, late of Springfield, deceased, seek instructions as to the distribution of a trust fund held by them under the eighth clause of the will.
The evidence is not reported and the judge made no report of material facts. However, the following facts are stated, either expressly or by necessary inference, in the briefs of the parties. The testator, whose will is dated November 26, 1926, died on January 19, 1927, leaving an estate consisting entirely of personal property of the value of $374,815.62. The daughter of the deceased, Marjorie C. Alfau, one of the petitioners, and called in the will Marjorie C. Holmes, was at one time the wife of one Miller. The respondent James R. Miller, described in the will as the testator’s grandson, is her son. She has no other issue. Miller has two minor children. Since the case has been argued upon the assumption that these are. facts and we are satisfied that the decree must be affirmed, we deal with the case as the parties have presented it. See Old Colony Trust Co. v. Shackford, 291 Mass. 361, 362.
The petition was taken as confessed against Marjorie C. Alfau individually and against Edwin F. Hewins, referred to in the will as a nephew of the testator. A guardian ad litem and next friend was appointed to represent the interests of the minor children of Miller and Hewins and to represent persons unborn and unascertained who are or who may become interested in the subject matter of the petition.
After providing for certain pecuniary legacies and (clause 5) for a trust whereunder the interest on a certain mortgage note was to be paid to his brother during his life as received by the trustees, without provision for the disposition of that trust estate upon his brother’s death; and (clause 6) for a trust fund of $20,000 for the benefit of his brother for life, which upon his death was to fall into the residuary trust created by the ninth clause of the will; and (clause 7) for a trust fund of the same sum for the
“9. All the rest, residue and remainder of my estate of every kind and nature, both real and personal and wheresoever situate, I give, devise and bequeath to said Springfield Safe Deposit and Trust Company and said Marjorie C. Holmes' in trust however for the following uses and purposes to wit: To invest and reinvest the same and pay over to my said daughter, Marjorie C. Holmes, in quarterly instalments the income thereof until said James R. Miller shall reach the age of thirty years, when one-third of the principal fund established in this paragraph shall be paid
The judge entered a decree in which he found that the
The case comes before us on the appeal of the testator’s grandson (hereinafter referred to as the respondent), who contends that the testator intended him to receive the principal of the trust estate created by the eighth clause of the will when he reached the age of thirty years. The testator did not, however, provide in express terms that when the respondent became thirty years of age the trust fund should be paid to him, though he provided that the trust involved should then terminate, nor did he provide in express terms that, upon the happening of that event, the trust estate should be added to the residuary trust funds.
In Boston Safe Deposit & Trust Co. v. Coffin, 152 Mass. 95, at page 100, it is said: “When the reading of a whole will produces a conviction that the testator must necessarily have intended an interest to be given which is not bequeathed by express and formal words, the court will supply the defect by implication, and so mould the language of the testator as to carry into effect as far as possible the intention which it is of opinion that he has on the whole sufficiently declared.” See also Metcalf v. First Parish in Framingham, 128 Mass. 370. But while “The court can . . . give effect to any intention of a testator which he has shown by the words that he has used, even though it has not been articulated in formal language . . . such an intention must appear from a perusal of the will itself. It cannot be inferred from mere silence . . .,” Springfield Safe Deposit & Trust Co. v. Dwelly, 219 Mass. 65, 69-70, and cases cited, nor by conjecture nor from the relationship of the parties. Bailey v. Bailey, 236 Mass. 244, 247. Wentworth v. Bell, 249 Mass. 120, 122.
In the instant case the testator is silent as to the dispo
The respondent Miller, however, has argued that the testator’s dominant interest as evidenced by the will was in his grandson and that to adopt a construction of the will "which takes this fund of $75,000 from . . . [him] if he reaches the age of thirty, we must adopt the conclusion that the testator intended to prefer the children of the respondent over their father.” We think that such a conclusion does not follow. The testator must have known that, if the respondent died before he became thirty years of age, any child or children of his would not be entitled to any interest in the residuary trust estate until the death of the testator’s daughter. In thus providing in the particular event for any children of the respondent it seems clear that he was not preferring them to him, but rather was taking care to provide for them pending the termination of the residuary trust by the death of his daughter who might survive the respondent. In providing that upon attaining the age of thirty years his grandson was to receive one third of the principal of the large residuary trust estate, he must have appreciated that, instead of being then cut off by the termination of the trust under the
The respondent has also argued that, since in the sixth and seventh clauses of the will establishing particular trust funds the testator provided for the addition of the trust fund, in the sixth clause upon the termination of that trust to the residuary trust estate, and in the seventh clause upon the termination of the trust in a certain contingency for like disposition, he knew how to evidence such an intent, and that from his silence as to the disposition of the trust fund here involved, in the event which has occurred, it may be inferred that it was his intention that the respondent should receive that fund upon reaching the age of thirty years. But in the fifth clause of the will establishing a trust fund for his brother, the testator was also silent as to its disposition upon the termination of that trust. In these circumstances we think that the inference suggested by the respondent is not permissible.
The respondent has also argued that in providing for the payment of one third of the principal of the residuary estate to him when he reached the age of thirty years, the testator described it as “one-third of the principal fund established in this paragraph,” and that it is thus indicated that he did not have in mind that the residue would be increased by the addition-of the trust estate created under the eighth clause of his will. The answer to this would seem to be that under the residuary clause the testator in certain contingencies provided for the distribution of “the balance of the principal of this fund including any balance which may be transferred to it in accordance with paragraph eight herein.” It thus clearly appears that the testator at least had in mind that, as provided in the eighth clause of the will, the trust fund upon the death of the respondent before reaching the age of thirty years leaving no children would be added to the residuary trust estate.
The decree of the Probate Court is affirmed, and costs and expenses of this appeal may be allowed in the discretion of that court.
Ordered accoriiml^
The eighth clause of the will consists of four paragraphs; the ninth clause of six paragraphs.
