311 Mass. 312 | Mass. | 1942
This is a report under G. L. (Ter. Ed.) c. 215, § 13, by a judge of probate who allowed several accounts of the trustees and surviving trustee under the will of Franklin N. Poor that came before him for decision on a case stated.
The testator made his will on March 31, 1903. The accountants, who were named therein as trustees, were appointed on December 26, 1906. The residue of the testator’s estate was given to the trustees upon two trusts, but the accounts in question concern only one of these trusts consisting of one half of the residue, which was set up in clause Fifth, Section A, of the will. This trust is for the benefit of the testator’s daughter, Nina Maria Poor Hodge, during her life, and thereafter for the benefit of her children who are living at her decease and the issue of any deceased child by right of representation, upon terms that need not be stated. The life beneficiary is living, as are her unmarried daughter and a married son who has a minor daughter. A guardian ad litem was appointed in the matter of the settlement of the accounts in question, and he filed a report. No contention is made that the trustees at any time acted in bad faith, or that they had made investments, or held investments coming from the testator, not permitted to trustees, unless any investments made or held were improper because they were not “interest bearring securities” within the meaning of these words as used
The main question to be decided is whether certain investments that are shown in the trustees’ “inventories” and accbunts, other than bonds and notes, are “interest bearing securities” within the meaning of these words as used in the will.
Clause Fifth, Section A of the will provides, among other things, that the trustees are to hold one half of the residue of the testator’s estate, “keeping the same invested in good, safe, interest bearing securities so as to produce an income.” This same language appears in clause Fifth, Section B, with reference to the other trust. The will, however, by clause First, after naming the trustees, but not the executrix or executor, contains the following language: “I give to my said Trustees, or the survivor of them, and to their successors in these Trusts full power and authority to sell by private sale or public auction and convey any of the Trust property and estate, real or personal, held by them in Trust
The fundamental rule for the construction of wills has repeatedly been stated. The purpose is to ascertain the intention of the testator from the whole will, attributing due weight to all its language, considered in the light of the circumstances known to him at the time of its execution, and to give effect to that intent unless some positive rule of law forbids. Fitts v. Powell, 307 Mass. 449, 454, and cases cited. “It is a familiar rule, in the construction of wills, that the intention of the testator is to govern, although it may be opposed to some of the words of the will; and that the general intention is to control any particular intention, especially when the particular intention relates to the manner by which the general intention is to be effectuated.” Malcolm v. Malcolm, 3 Cush. 472, 477. In Pratt v. Rice, 7 Cush. 209, it was held that a devise of an undivided part of the testator’s property must yield to a subsequent provision in the will authorizing the executors, at their discretion, to sell and convey a part or the whole of the estate. There it was said that the entire will is to be read in deciding upon the effect of a particular devise. “If any preference is to be made in reference to the order in which the
In the search for the answer to the question presented, we consider the “light of the circumstances” known to the testator at the time of the execution of the will. Fitts v. Powell, 307 Mass. 449, 454.
The testator was for forty years the treasurer of the Vermont and Massachusetts Railroad Company, and the deceased trustee Ware was the president. It was agreed that the trustee Poor would testify that the testator, “during his life,” said to her with reference to the stock of this railroad: “Don’t ever part with it, it’s better than a bond.” The value of the four blocks of stock, as disclosed by the trustees’ inventory, was $32,971, of which $26,010 was given as the value of the one hundred fifty-three shares of the stock of this railroad.' The total value of the assets turned over to the trustees, as disclosed by the inventory, was $60,486.29, including notes of the testator’s son-in-
Too much reliance cannot be placed upon the alleged statement of the testator to his daughter. It does not appear just when it was made. It does appear, however, that the stock of the railroad referred to was a very substantial asset of his estate, and it also appears as a fact that, although the value of this stock has depreciated as of December 31, 1939, the end of the accounting period, nevertheless it was then paying dividends. This evidence of what the testator may have said cannot be received to contradict or control the language of the will or to show that he intended something different from what is expressed therein. Kingman v. New Bedford Home for Aged, 237 Mass. 323, 326, 327, and cases cited. Saucier v. Saucier, 256 Mass. 107, 110, 111. Calder v. Bryant, 282 Mass. 231, 239. But it has some bearing upon the circumstances surrounding the testator. Lydon v. Campbell, 204 Mass. 580, 584-585. See Smith v. Livermore, 298 Mass. 223, 241. It is to be assumed that he did not intend to incorporate inconsistent provisions in his will, and the various provisions are to be so construed, if they reasonably can be, consistently with his intention, so as to avoid repugnancy. It appears from the will that the testator was himself a trustee and agent, and he provides that the settlement of his own estate is to be deferred until his duty to his clients and
The language of clause Seventh of the will, by which the executrix or executor "in distributing or transferring any devise or bequest, or any fund or portion of the Trust estates finally to any party entitled hereunder . . . may do so by transferring such stock or other securities ... as they shall deem in kind and amount will make justly the portion intended,” may refer to the duty of the executrix or executor to transfer to the trustees. The will provides for certain bequests, and there is a provision that, one half of the household furniture and other articles are to be held by the trustees for the benefit of the testator’s daughter, who is one of the appellants, during her life, and the clauses of the will provide for the eventual transfer of the assets of the several trusts by the trustees to the ultimate beneficiaries. On the other hand, it would seem that a distribution or transfer of any fund or portion of the trust estate, "finally to any party entitled hereunder,” refers to any persons ultimately entitled to a portion of a trust estate rather than to the trustees, who in the first instance would receive the trust assets. As already appears, the executrix, or, in the alternative, the executor named, were in fact the same persons who were named as trustees. From an examination of the will as a whole, it would seem that the words "such stock or other securities,” as used in the clause relating to the duties of the executrix or executor, relate to and include stock or securities that are a part of the trust estates.
Upon a consideration of the will as a whole, we are of opinion that the testator did not intend by the use of the words “interest bearing securities” to exclude “good, safe” shares of stock. It is apparent that he desired investments that would “produce an income.” He must have had confidence in the trustees that he named, one of whom was the
Motions for costs and expenses have been presented to this court in behalf of the guardian ad litem and the representatives of the trustees. It is assumed that the representatives of the trustees, in the settlement of their accounts in the Probate Court, may there present for consideration the matter of expenses and costs incurred in this proceeding. The statute provides that a guardian ad litem, appointed in a proceeding of this character, shall be entitled to such reasonable compensation as the court shall allow (G. L. [¡Ter. Ed.] c. 206, § 24, as inserted by St. 1938, c. 154, § 1), and we are of opinion that his compensation should be determined by the Probate Court.
Decrees affirmed.