139 A. 659 | R.I. | 1927
This case formerly was here on erroneous certification.
No question of fact was raised. The legal question is whether complainant can convey the land in fee simple. This depends upon the construction to be given to a paragraph of the will of John Alfred Hazard, late of Newport, *41 who died May 2, 1880, and which will, executed December 26, 1876, was duly admitted to probate. By its terms, after payment of debts and provision that "my wife shall have no portion of my property but only her dower in my real estate" he gave five thousand dollars to a servant and five hundred dollars to a cemetery corporation for perpetual care of his lot. All the rest, residue and remainder of his estate he devised and bequeathed to "The Newport Hospital" in trust: (1) "to set apart and invest five Thousand Dollars raising said sum by sale of my real estate if necessary and pay and apply the income thereof to and for the use of Samuel C. Clinton" . . . for his life; (2) to set apart in the same way for Mrs. Rebecca Stanley ten thousand dollars; (3) "to forever keep in good order the monuments, graves, grounds and fences of the Easton Burial Lot on my farm at Sachuset Beach in Middletown"; (4) "to forever use and apply the whole residue and remainder of said trust property" for medical care of the poor under such regulations as the trustees of the hospital from time to time should prescribe, "the object hereof being to benefit as many such poor persons as practicable and at the same time provide and secure a permanent source of aid, remedy and relief"; for the carrying out of such purpose testator provided that the trustees of the hospital "shall always have power to sell and change the investment of said trust property and every portion and parcel thereof whenever and as often as it may seem desirable to do so . . . and with continuous power to sell and change investments as aforesaid." As a part of said fourth provision, immediately following the above, appears the following paragraph: "But I particularly desire and recommend that no part of my said farm in Middletown shall ever be sold or in any way aliened or disposed of except by lease or leases for a term of not more than ten years each, from time to time as may seem proper."
The clause last quoted is the cause of the present litigation. Respondent contends that complainant can not sell *42
the Middletown farm of which the land he agreed to buy is a portion. The farm constituted only one parcel of testator's real estate holdings. Respondent urges that the later clause is inconsistent with the earlier giving an unlimited power of sale and so far as inconsistent curtails that power in accordance with the well settled rule in such cases. Frelinghuysen v. N YLife Ins. Trust Co.,
Few extrinsic circumstances exist to aid us. Testator owned considerable real estate near the ocean. The wisdom of this sale in prudent business management of the trust property is not involved. The question is solely one of power under the will. This is the first attempted sale of any portion of the farm. It is not denied that the first grant of authority to sell is explicit and includes the Middletown farm unless modified by the later expression of recommendation and desire.
It is agreed that the problem must be solved by ascertainment of testator's intention as shown by his whole will. That intention, if doubtful, is to be found by application of well settled principles of law. Hochstedler v. Hochstedler,
In looking at this will "as far as possible from the testator's point of view" (Perry v. Brown,
Respondent's appeal is denied; the decree appealed from is affirmed and the cause is remanded to the Superior Court for further proceedings.