80 A. 133 | R.I. | 1911
This is a bill in equity brought by the trustees under the will of Harold Brown, the executor of the will of Sophia Augusta Brown, and the administrator de bonis non with the will of said Harold Brown annexed, for instruction, which prayer involves the construction of certain clauses of said will of Harold Brown.
Said will was executed October 16th, 1899. The testator died on May 10th, 1900; and said will was finally proved before the Probate Court of Newport on June 18th, 1900.
By the second clause of said will the testator bequeathed to his wife, Georgette Brown, for her absolute use, three hundred and fifty thousand dollars, and, with some slight reservations, all works of art, household furniture, horses, carriages and like effects by him possessed, together with certain other pieces of personal property. *342
By the third clause of said will the testator devised and bequeathed his Mansion House Estate in Newport, his undivided one-half of land situated in Newport called the Stable Estate, another tract of land situated in Newport, his four shares of the stock of the Spouting Rock Beach Association in Newport and his bath-houses on said beach, to certain trustees in trust, among other matters, to permit the testator's wife, the defendant Georgette Brown, to have the use and occupation of the same, free of rent therefor, during her life, and, in case of lease or sale of the same, or of any part thereof, to pay over, in case of lease, the entire rents, and in case of sale, the entire income arising from the proceeds of sale, to her, for her absolute use.
The testator further bequeathed a number of pecuniary and specific legacies; and by the nineteenth clause of said will devised and bequeathed his residuary estate, real and personal, to certain trustees in trust, the provisions of which trust materially vary in dependence upon the circumstances of there being or not being a child, children or more remote issue of the testator living at his death.
In the event that there should be issue of the testator living at the time of his death, it is provided, first, that the trustees shall set apart from the rest of what the testator terms his residuary personal estate, the shares of stock owned by him, at the time of his death, in the capital stock of the Lonsdale, the Hope, the Blackstone Manufacturing and the Berkeley Companies; Second, that the said trustees shall hold one-fourth part of the remaining portion of his residuary personal estate in trust to pay over the net income therefrom to the testator's wife until her death or marriage; and third, that, after the death or marriage of said wife as to this one-fourth part of his remaining residuary personal estate, and, after the testator's death, as to all the remaining residuary estate, real and personal, including shares of stock in the four manufacturing companies aforesaid, the said trustees shall stand seized and possessed of the same to the use of the testator's issue, who shall in the testator's lifetime *343 or after attain the age of twenty-one years or marry under that age.
In the event that there be no issue of the testator living at the time of his death, the provisions of the trust, among other things, are: first, that the trustees shall "forthwith transfer and convey" the shares of stock in the four manufacturing companies aforesaid to the testator's brother, John Nicholas Brown, if then living, for his own use forever. If the said John Nicholas Brown should not be living at the time of the testator's death then the trustees shall "forthwith transfer and convey" said shares of stock to the issue of the said John Nicholas Brown; second, that the trustees shall stand seized of the testator's residuary real estate to the use of the testator's brother, John Nicholas Brown, if he be living at the time of the death of the testator and to the use of his heirs forever. If the said John Nicholas Brown should not be living at the time of the testator's death, then said trustees to stand seized of said residuary real estate to the use of the child, children or more remote issue of the said John Nicholas Brown; third, the trustees shall stand seized of the remaining parts of the testator's residuary personal estate in trust to assign, transfer and pay over, one-quarter part to the testator's mother, Sophia Augusta Brown, for her own absolute use forever; fourth, to assign, transfer and pay over, one other quarter part to his brother, John Nicholas Brown, if he be living at the time of the testator's death, to his own absolute use forever; if the said John Nicholas Brown, should not be living at the time of the testator's death, then the said trustees to assign, transfer and pay over said one quarter part to the child, children or more remote issue of the said John Nicholas Brown; fifth, to hold one other quarter part in trust to pay over the net income arising therefrom to the testator's wife until her death or marriage, in the same manner as was provided in the event of the testator leaving issue at the time of his death; sixth, to hold the remaining one-quarter part in trust to pay over the net income arising therefrom to the testator's sister, Sophia Augusta Sherman, for and during her *344 natural life, and upon her death the trustees to stand seized and possessed of said one-quarter part for the use of the issue of said Sophia Augusta Sherman.
The testator died a young man, within a few months after the execution of this will, without ever having had issue. The testator's brother, John Nicholas Brown, deceased in the testator's lifetime, leaving John Nicholas Brown, Jr., a minor, his only child and issue him surviving.
By the twentieth clause of his will, the testator, among other things, provided as follows: ". . . And my said Trustees shall collect the income, dividends and profits accruing and arising from the said residuary estate, and said trust properties, estate and premises respectively, and the investments and reinvestments of the same, and shall pay therefrom all taxes, assessments, insurance premiums, repairs and all other expenses incurred in the care and management of said trust estate, and also all upon or in respect of my homestead and other estate hereinbefore by the third clause of this will devised in trust for my wife, and including their own reasonable compensation for services under the several trusts aforesaid."
After the probate of said will the executors following what they considered to be the direction to them contained in the will, transferred the shares of stock in the four manufacturing companies aforesaid to said John Nicholas Brown, Jr., and paid over and transferred to him and to Sophia Augusta Brown, the mother of the testator, to each respectively, one-fourth of the testator's residuary personal estate remaining in the hands of the executors after transferring the said shares of stock to John Nicholas Brown, Jr., as aforesaid, and transferred one other one-fourth part of the said remaining residuary personal estate to the trustees under said will in trust for the widow of Harold Brown, for her life with remainder as in said will declared, and transferred the remaining fourth part of said remaining residuary personal estate to the trustees under said will in trust for the said Sophia Augusta Sherman, the sister of the testator, *345 with remainder as in said will declared; and further, believing that the legal title of the testator's residuary real estate vested at once in said John Nicholas Brown, Jr., by the statute of uses, the said trustees have never collected any of the rents or income from or otherwise exercised any control over the said residuary real estate of said Harold Brown, but said trustees have permitted the rents and income of said real estate to be collected by the guardian of the estate of said John Nicholas Brown, Jr. The said trustees, under the will of Harold Brown, have, therefore, in their hands and under their control only the said two-fourth parts of the testator's residuary personal estate remaining after transferring said shares of stock to John Nicholas Brown, Jr., as aforesaid, and, in accordance with what they understand to be the direction of the twentieth clause of said will, they have paid from the income of these two-fourth parts of the testator's remaining residuary personal estate in their hands all the taxes, assessments, insurance premiums, repairs and all other expenses incurred in the care and management of and upon or in respect of the homestead and other estates given by the third clause of said will in trust for the benefit of the testator's wife.
It is contended by the respondents Sophia Augusta Sherman and Georgette Brown that the said executors should not have transferred the said shares of stock in the four manufacturing companies to the said John Nicholas Brown, Jr., and should not have conveyed the said two-fourth parts of the testator's remaining residuary personal estate to said Sophia Augusta Brown and the said John Nicholas Brown, Jr., without having first provided that said residuary estate so transferred and conveyed to said Sophia Augusta Brown and John Nicholas Brown, Jr., should contribute its pro rata share of the taxes and other expenditures for the benefit of said homestead estate, so that the said taxes and expenditures should be a charge upon the income of the entire residuary estate of the testator and the entire burden of said taxes and expenditures should not be thrown upon *346 the income from the two-fourths parts of said remaining residuary personal estate of the testator now in the hands of said trustees; and that the said trustees should not have permitted and should not now continue to permit the said John Nicholas Brown, Jr., to receive the income of the testator's residuary real estate without contributing to the taxes and expenditures for the maintenance of said homestead estates. It is in regard to the questions raised by these claims of the said respondents, Sophia Augusta Sherman and Georgette Brown, that the complainants ask for a construction of the nineteenth and twentieth clauses of said will, so far as relates to said questions, and for instruction as to their duty in the premises.
In the circumstances surrounding this estate, as they existed at the time of the testator's death, to support the claim that it was the testator's intention, as shown by the will, to charge the income of the entire residuary estate with the payment of the taxes and expenses of the homestead estate, such intention must be found clearly expressed in the will or such intention must appear by necessary implication from an examination of the will as a whole. The respondents contend that the twentieth clause provides in express terms for the payment of said taxes and expenses from the income of the entire residuary estate; and find such express provision in the following language of said twentieth clause: "And my said trustees shall collect the income, dividends and profits accruing and arising from the said residuary estate, and said trust properties, estates and premises respectively, and the investments and reinvestments of the same, and shall pay therefrom all taxes, assessments, insurance premiums, repairs and all other expenses incurred in the care and management of said trust estate, and also all upon or in respect of my homestead and other estates hereinbefore by the third clause of this will devised in trust for my wife, and including their own reasonable compensation for services under the several trusts aforesaid." This language is not free from doubt and considered without reference to *347 the other provisions of the will furnishes some support for the respondents' contention. The respondents argue that the words "and trust properties, estates and premises respectively" are added simply to amplify the expression "residuary estate" in order to show what the testator means to include in his residuary estate, the income from which is to be collected by the trustees. It can pertinently be replied to this argument that by the nineteenth clause the testator has very clearly defined his residuary estate; and these added words do not tend to make clearer what the testator meant by his residuary estate, or to express more clearly the intention, if such he had, that the trustees should collect the income of the entire residuary estate in all circumstances; but rather tend to raise a doubt as to what was the testator's intention in that regard; and in themselves give some basis for the conclusion that the testator contemplated two possibilities, one in which the income of the whole residuary estate and another in which the income of only some portion thereof, retained by the trustees, should "respectively" bear the burden of this charge. But it is not from a consideration of this language alone, but by an examination of the provisions of the whole will that the intention of the testator is to be found.
The provisions of the will which became operative by reason of the circumstances existing at the time of the testator's death, are inconsistent with a construction of the twentieth clause which would empower and direct the trustees to control, invest and reinvest the entire residuary estate and to collect the income, dividends and profits accruing and arising therefrom; and it is only upon the income, dividends and profits accruing and arising from "the said residuary estate, and said trust properties, estates and premises respectively and the investments and reinvestments of the same" and not upon the estates or trust properties themselves, that said taxes and expenses of the homestead estate are charged. It was the intention of the testator, clearly expressed by the positive language of the will, *348 that, in the conditions existing at the time of his death, certain portions of the residuary estate should pass out from the trusts, and that the trustees should not collect the income derived from such portions. This expressed intention must control the action of the trustees unless such intention is clearly modified or annulled by some other provision of the will, or unless upon an examination of the whole will there appears an implication to the contrary so plain as necessarily to require this apparent intention to be disregarded. The will provides: "in the event of the failure of the limitations of the preceding trust, that is to say, in case no child or more remote issue of mine shall be living at my death . . . then my said trustees shall stand seized of all and singular the said residuary estate, real and personal given, bequeathed and devised to them . . . as aforesaid and all investments and reinvestments . . . thereof, to and for the following uses and purposes, that is to say;" and the testator then proceeds to divide up the residuary estate and to provide for an immediate distribution of certain portions of it. The trustees are directed among other things "to forthwith transfer and convey" the said stock in the four manufacturing companies aforesaid to the testator's brother, John Nicholas Brown, for his own use forever, if living and if not to his child or children or more remote issue. This positive and explicit direction is not consistent with the continuance of a control of said shares of stock by said trustees, or with a power in them to sell the same or to invest or reinvest the proceeds of such sale or to collect the dividends or income accruing upon said stock. We find no express provision of the will which in any manner modifies this explicit direction to forthwith transfer and convey said shares of stock to John Nicholas Brown for his own use forever, unless it be the provision in the nineteenth clause of the will, the exact meaning of which is not altogether clear, directing the trustee to collect the income from the residuary estate and trust properties, respectively. We know of no rule of construction *349 by which the specific direction to forthwith transfer and convey said shares of stock would be limited or controlled or the gift cut down by the language of the later general direction to the trustees, to collect the income from the residuary estate and trust properties.
The respondents claim that it is a necessary implication from the will as a whole that the testator did not intend the expenses of the homestead estate to be paid solely from the income of the two-fourth parts of the remaining residuary personal estate now held by the trustees.
The testator contemplated the possibility of just the circumstances which developed, namely, that he should die without issue surviving him; and that the direction to forthwith transfer and convey the said shares of stock would become operative at once. If the testator had wished that the said shares of stock or the income thereof should be charged with the payment of a portion of the homestead expenses he could easily have so provided in express terms; and if such was his intention it is unlikely that he would by inadvertence have omitted a provision so obviously important.
We have already determined, in this opinion, that there is no express provision of the will which makes a charge upon the income or dividend accruing from said shares of stock. Is there a necessary implication to be drawn from the will that the testator intended to make such a charge; or do the circumstances as they developed upon the testator's death require the court of necessity to find that there was an omission by inadvertence which the court must supply, in order that the evident intention of the testator may not be frustrated? It may be urged as quite likely, if the testator had carefully considered the matter, that he would have desired that the income of said shares of stock should bear a part of the expenses of the homestead estate and to that extent relieve the income of the portion of the residuary estate held in trust for his wife; but this consideration is based entirely upon conjecture. "Courts *350
cannot . . . determine by mere conjecture, that the testator omitted from his will provisions that he would have incorporated if he had not overlooked probable future occurrences, and undertake to rectify such omission, for to do so would be to incorporate, by construction, a new clause in the will. This would not only be contrary to the will as made, but would be making a new will," — McFarland v. McFarland,
In seeking the intention of the testator the court must consider what he has written in his will; and nothing is to be inferred save what is a necessary implication. Lord Eldon, *351
in Wilkinson v. Adam, 1 Ves. B., 422, at page 465, says: "and my opinion is, that such intention must appear by necessary implication upon the will itself. With regard to that expression `necessary implication,' I will repeat what I have before stated from a note of Lord Hardwicke's judgment in Coriton v.Helier; that in construing a will conjecture must not be taken for implication; but necessary implication means, not natural necessity, but so strong a probability of intention, that an intention contrary to that which is imputed to the testator, cannot be supposed." In Bishop v. McClelland,
The respondents consider the authority of Fisher,Petitioner,
In Barstow v. Thomas,
We are of the opinion that the transfer of the stock in the four manufacturing companies aforesaid to John Nicholas Brown, Jr., and the transfer of the two-fourths part of the remaining residuary personal estate to Sophia Augusta Brown and to John Nicholas Brown, Jr., was in accordance with the direction of the will; that the action of the trustees in permitting the guardian of the estate of John Nicholas Brown, Jr., to collect the rents and income of the residuary real estate was proper; and that the taxes and expenditures upon or in respect of the testator's homestead and other estates by the third clause of his will devised in trust for his wife are properly payable from the income of so much of *356 the residuary personal estate only as was transferred to and came under the control of the trustees of said will.
A decree may be presented to this court in accordance with the above opinion.