258 A.2d 80 | R.I. | 1969
This is the second time the will of Adelene Agnes Tuck, late of the town of Middletown, who died on September 1, 1959, has come to us for construction. When it was first here
After remand to the superior court, the evidentiary void which prompted our refusal to advise was filled and the record now shows that the income presently earned by the fund is insufficient to furnish scholarships to those who seek assistance and to whom aid would be awarded were the Association free to use the principal of the fund. It is with that factual background that the cause, when it was ready for entry of judgment in the superior court, was certified to this court pursuant to G. L. 1956, §9-24-28, as amended.
The question before us is how to construe that portion of the Fourteenth clause
How we decide that question in no way turns upon whether the bequest to complainant is considered a gift to
When we consider that problem, we look first to the pertinent language of clause Fourteenth, but we find nothing there which discloses a clearly expressed direction that scholarships should be paid out of income only, or that principal should also be available. Both complainant and the attorney general
We have then a situation where the dispositive intent of the testatrix is unknown. Undoubtedly the testatrix' neglect in this respect was not a deliberate oversight; and it would strain credulity to believe that she would have not selected appropriate and readily available language if the question of the use of principal had occurred to her or if it had been brought to her attention. The issue then is not what she intended or probably intended, but what would have been her intention assuming that she was an average testatrix faced with the particular problem and desirous of doing whatever was fair and just. Manufacturers Nat’l Bank v. McCoy, 100 R. I. 154, 212 A.2d 53. See 2 Scott, Law of Trusts, (3d ed.) §164.1, at 1261. We recognize that this issue is susceptible to different but equally reasonable conclusions. Notwithstanding, we must express a construc
The parties may present to this court for our approval a form of judgment in accordance with this opinion to be entered in the superior court.
Alumnae Ass’n of Newport Hospital School of Nursing v. Nugent, 101 R. I. 26, 219 A.2d 763.
“FOURTEENTH: All the rest, residue and remainder of my property of every kind, nature and description, real, personal and mixed, wherever situated and howsoever and whensoever by me acquired, whether before or after the execution of this my Will, of which I may die seized, or over which I may have any power of appointment or disposition, I give, devise and bequeath, absolutely and in fee simple, as follows:
“One-Third (1/3) thereof to the Newport Hospital Nurses Alumni Association to be used to provide scholarships for persons who desire to make nursing their vocation and who have the intention and purpose to become good bedside nurses.”
The complainant is designated in the title of this case as Alumnae Association of the Newport Hospital School of Nursing; in the pertinent part of the residuary clause set out in n. 2, supra, it is described as “Newport Hospital Nurses Alumni Association.” The difference between the two designations is explained in our earlier opinion, 101 E. I. 26 at pp. 28-29, 219 A .2d 764-65.
The attorney general appeared as respondent conformably to §18-9-5 which provides: “The attorney-general shall be notified of all judicial proceedings affecting, or in any manner dealing with, a charitable trust or affecting, or in any manner dealing with, a trustee who holds in trust within the state property given, devised or bequeathed for charitable, educational or religious purposes, and who administers or is under a duty to administer the same in whole or in part for said purposes within the state, and shall be deemed to be an interested party thereto.”