299 Mass. 390 | Mass. | 1938
This is a petition for instructions as to the distribution of certain property held in trust by the petitioner, as it is trustee under the seventh clause of the will of John C. Rhodes, who died July 15, 1916, leaving as his only heirs at law a widow, Caroline M. Rhodes, and a son, John B. Rhodes. He was also survived by a grandnephew, Marcus Arnold Rhodes, who is a respondent in the proceeding, and a grandniece, Nancy Bassett Rhodes Barker, who has since deceased and whose executor is also a respondent.
By the seventh clause of his will the testator gave one third of certain described personal property in trust to pay the net income to his wife for life, and upon her death to pay over three fourths of the trust fund then in the hands of the trustee “as provided in the Ninth Clause of this will.” By the eighth clause of the will the testator gave his son John $50,000 out of the remainder of his estate. In the ninth clause he gave all the rest, residue and remainder of his estate in trust to pay the income to “John” for life, and therein provided as follows: "If at any time after the expiration of a period of seven years from the date of my death said Trustee acting in his sole discretion shall deem it wise and prudent and for the best interests and welfare of my said son, then to pay over and deliver either a part or the whole of said trust fund to my said son ... in that event as to such part or the whole so paid over and delivered this trust shall terminate, and the property so paid over and delivered shall be and become the absolute property of my said son. In the exercise of the discretion herein given, said Trustee is directed to use his own judgment as to the wisdom of terminating this trust, either in part or in whole, as herein provided, in view of the conduct and manner of life of my said son and in view of his opinion as to the probability of his making a reasonably prudent use of the property.”
Other provisions of the ninth clause are as follows: “(4).
Oliver Prescott was duly appointed and qualified as trustee under the ninth clause of the will, and, on July 16, 1923, he paid over and delivered to the testator’s son the trust estate actually in his possession and executed an in
The testator’s son died testate August 18, 1935, leaving no issue. By his will he gave to his wife, Florence, all his property “specifically including ... all the property of
Florence Cryer Rhodes appealed from the decree individually and as executrix of the will of the testator’s son. She contends that upon the death of the testator the remainder in the fund involved vested in the trustee under the ninth clause, and passed in interest by the assignment to “John” and by his will to her, and that she is now entitled to possession. The respondents, Marcus A. Rhodes and the trust company, maintain that the fund did not fall into the residuary trust created by clause nine on the death of the life beneficiary, but that it became distributable by the petitioner trustee under the seventh clause, who should look to the ninth clause for enlightenment as to the manner of distribution. The respondent Florence Cryer Rhodes, who for convenience will hereinafter be referred to as the appellant, relies largely on the case of Smith v. Livermore, 298 Mass. 223, where, at pages 237 and 238, it appears that .there was a gift of a trust fund the income of which was to be paid to a life beneficiary with the provision that “At her death said fund shall be distributed in accordance with the residuary clause of this will,” and where the court held that the clause, “read in connection with other provisions of the will, makes the fund thereby given, after the death of the life tenant, a part of the residue.” We think that case is distinguishable from the present case, as in the former the residuary clause contained a specific-provision that the rest and residue passing under it should include “all reversions and remainders.” (Page 239.) Moreover, in the present
The “rule for the construction of wills, briefly stated, is that the intention of the testator is to be ascertained from the whole instrument, attributing due weight to all its language, and then to give effect to that intent unless prevented by some positive rule of law. Ware v. Minot, 202 Mass. 512, 516. Temple v. Russell, 251 Mass. 231, 235.” Boston Safe Deposit & Trust Co. v. Stratton, 259 Mass. 465, 470. Throughout the provisions of clause nine the testator speaks consistently of “this trust.” The tenth clause of the will directs that all inheritance taxes upon legacies given to the testator’s wife by the first and seventh clauses of his will shall be paid out of the principal of the “Trust Fund created for her by the Seventh clause” of his will, and that those upon the legacies given his son under the sixth, eighth and ninth clauses be paid out of the principal of the “Trust Fund created for him by the Ninth clause” of the will. The
It has been argued that the principal concern of the testator as indicated by his will was for his wife and son. Under the ninth clause, however, it is clear that if upon the death of his son the trustee had any trust estate then in his possession, the testator did not intend that it should go in its entirety to the appellant. In that event the testator provided that she should receive but a third of what remained if she survived the son, and that the balance, or the whole
Decree affirmed.