76 A. 160 | R.I. | 1910
This bill for the construction of the sixth clause of the will and a portion of the codicil thereto of the late Daniel L.D. Granger has been certified to this court for a final decree under the provisions of Gen. Laws, 1909, cap. 289, § 35.
The petitioners are the executors and trustees thereunder, and desire a construction of the provisions aforesaid and the instructions of the court thereupon, with reference to contingencies which can not arise during the lifetime of Grace Granger, the sister of the petitioner, and which can never arise in the event of the prior death of her brother William D. Granger and of his children without issue, since in that event the provisions of the will are not affected by the particular provisions of the codicil which are here in question. During the life of Grace Granger the duty of the trustees is concededly defined as follows: "All the rest and residue of my estate, *479 real, personal and mixed, of whatsoever nature and wheresoever situated, of which I may die seized and possessed, or to which I may be in any way entitled at the time of my death, I give, devise and bequeath to the said Albert Babcock and to the said Grace Granger, and to the survivor of them and to their successor or successors in the trust hereby created, but in trust nevertheless upon the trusts and for the uses and purposes following, that is to say: to hold, stand seized and possessed of said trust estate, and to collect and receive the income thereof, and to pay over said income as often as once in three months to my said sister, Grace Granger, for and during her natural life."
In Goddard v. Brown,
And a similar rule was applied by the Supreme Court of Massachusetts in a similar proceeding in Minot v. Taylor, *480
Inasmuch as none of the questions propounded arise during the lifetime of Grace Granger and may, as before stated, never arise, we are of the opinion that this proceeding is prematurely instituted and must be dismissed.
The cause will be remanded to the Superior Court with direction to enter a decree dismissing the bill, without prejudice, as prematurely preferred.