96 Me. 155 | Me. | 1902
This bill is brought by the trustee under the will of Charlotte P. Shaw for a construction of clause seventeen of the will; and for the direction of the. court as to the manner of executing the trust therein created. Said seventeenth clause is as follows: “Seventeenth. Eight shares of my stock in the New York, Now Haven and Hartford P. P. Co.; my shares of stock in the Boston & Albany R. R. Co.;-my house and lot on Casco Street in said Portland ; and thirty-five two-hundredths (35-200)' of my' Merritt farm in Minnesota, more-definitely named in the last preceding item of this will, I give, devise, and bequeath to the said Kate P. Trickey, to have and to hold to her, and her heirs, executors, administrators, and assigns, for and during' the term' of the natural life of James S. Ames aforesaid, but in trust nevertheless for the benefit of my nephew, James S. Ames aforesaid, and so that at the discretion of the trustee the net income from said trust estate shall from time to time be
It is agreed that the family of James S. Ames at the time of the making of the will consisted, and now consists, of his wife and daughter, but that they have not lived with him, or maintained family relations with him since 1895, although there has been no divorce or separation by order of court, and that since the separation he has not contributed to their support. In determining whether the wife, Harriet E. Ames, and the daughter, Harriet E. Ames, Jr., are independent beneficiaries under the will, and as such entitled to any portion of the income of the trust fund, regard must be had to the words of the will itself in all its different parts. The construction placed by learned judges on expressions in other wills under other circumstances, differing from though somewhat similiar to those before us, throw's little light upon the intention of the testatrix here. The trust is, in the first instance, expressly declared to be for the benefit of James, and it is claimed that the. expressions which
And we think this construction is strengthened by the fact that by the seventh, twelfth, and thirteenth clauses of the will specific and substantial bequests and devises are made directly to James S. Ames. By the ninth and eighteenth clauses he is one of the four residuary devisees and legatees of the real and personal estate. In none of these clauses is any mention made of the family. If what the testatrix had in mind was simply to benefit and provide for her nephew, James, leaving the comfort and support of his family entirely dependent upon his affection, or the performance by him of the obligations which the law imposed upon him to support his wife and daughter, it is difficult to understand why the family should be named in connection with the disposition of the trust fund and nowhere else. From the distinction thus made the conclusion is irresistible, that the testatrix intended the family of her nephew to have from the trust fund a direct beneficial interest, different from that which it would incident
We think these considerations outweigh any argument to be drawn from the fact that the trust was to continue only during James’ life and the trust estate was then devised to his issue, and in default of such issue to the issue of another nephew, without making any further mention of James’ wife. Such a gift to those alone who were related to her by consanguinity is not inconsistent with an intention, on the part of the testatrix, to give to the wife during her husband’s, life such an interest in the trust fund as would provide for her comfort and support, and relieve her from suffering and distress. If there were children, the estate would still continue in her family; and if there were none, and the wife survived the husband, the testatrix might then reasonably prefer her own relatives to the wife of a deceased nephew. Moreover, in making wills testators do not always foresee, and not foreseeing do not provide, for every possible contingency. If they did there would be less bills brought to determine the construction of their wills.
Neither do we think too great importance should be attached to the right given to James alone to object to the trustee named. He was the husband and father, the head of the family, which at the time of the making of the will was still united. The testatrix might ■well believe that he would act for the interest of that family; and that beyond that it was not desirable to invest either the woman or the child, who were to be the recipients of her bounty, with the unusual power of rejecting the trustee she had named, through whom that bounty was to be exercised.
It is suggested that the wife and daughter no longer belong to the family of James, and that while living separate and apart from him they have no right to participate in the benefits of the trust. There is nothing in the will indicating such an intention on the part of the testatrix. So far as they are concerned the declared purpose of the trust, their comfort and support and their relief from suffering and distress, might require that they should receive its benefits even more when living apart from, than when .living with the husband and father. The separation took place more than a year before the death
In answer to the questions submitted, our opinion therefore is, that the whole of the net income of the trust estate is not payable to James S. Ames; that so much of said net income as the trustee in his discretion exercised in good faith may determine, is either payable to Harriet E. Ames, or to be otherwise applied by the trustee to the comfort and support of herself and said Harriet E. Ames, Jr.; and that the right of said Harriet E. Ames and said Harriet E. Ames, Jr., to have such portion of said income so applied is in ■ no way affected by their separation from James S. Ames, except so far, if at all, as it may properly influence the discretion of the trustee..
The costs of both parties are a proper charge upon the income, and are to be paid by the trustee.
Decree accordingly.'
