309 Mass. 337 | Mass. | 1941
This is a petition for instructions by the trustees of the “special trust,” so called, established under the fourth article of the will of Arthur E. Childs. All parties in interest are before the court, including a guardian ad litem or next friend for persons unborn or unascertained. The surviving “general trustees,” so called, under said will have also petitioned in their amended answer for instructions in the event that certain funds come into their hands as the result of the instructions asked for by the trustees of the.
The testator, who died on November 9, 1933, was survived by his wife, who died on January 17, 1939, his son, Philip Moen Childs, a party to these proceedings, and a daughter, Alice Muriel Childs, who was married on June 9, 1934, and died December 25, 1939, leaving no issue. The will in question was executed on December 7, 1931, and a codicil thereto on May 28, 1932. The will specifically mentions two grandchildren, the children of the son, both of whom are living and are represented in this proceeding.
The first prayer for instructions is directed to a portion of Article Fourth of the will, which is as follows: “ (b) Subject to the provisions of Clause (g) hereof, the net income of the special trust shall be equally divided semi-annually among my wife, Alice Moen Childs, and my son, Philip Moen Childs, and my daughter, Alice Muriel Childs, and the survivors or survivor of them, until the death of the last survivor, whereupon the income shall go into the residue of my estate; provided, however, that if my son or daughter shall die leaving children before the special trust is terminated, the share of income payable to my deceased child at time of death shall thereafter be equally divided semi-annually among my deceased child’s children, and if
The will gave to the testator’s wife a life estate in real estate in New Hampshire, together with certain timber rights. She also was given certain personal property in the main consisting of farm and household effects. A niece was given $5,000. The will, in Article Fourth, consisting of eleven subparagraphs indicated by the letters from (a) to (k), inclusive, sets up a special trust consisting of all of the testator’s stock of The Columbian National Life Insifrance Company and the American Investment Securities Company, and all his interest in trust certificates and fractional interests scrip issued to him under a trust agreement of the common stockholders of the securities company. The testator, at the time of his death, owned one thousand six hundred thirty-seven shares of the stock of the insurance company out of a total capitalization of twenty thousand shares. He also owned trust certificates for sixty-four thousand eight hundred twenty-four shares of common stock and one thousand three hundred eight shares of common stock of the securities company out of a total capitalization of two hundred sixty-five thousand four hundred seventy-six shares, and the securities company at that time owned approximately seventy per cent of the stock
Article Fifth-of the will sets up trusts A, B and C. It provides that all the rest, residue and remainder of the testator’s property, subject to the provisions of “Paragraph Ninth” which relate to an agreement entered into in 1918 between the testator’s son, the son’s wife, the testator and his wife, the terms of which need not be gone into, are given “in three separate equal portions” to three named trustees. Trust A provides that one third of said residue shall be held in a separate trust by the “general trustees” for the benefit of the testator’s wife, the net income of which shall be paid to her quarterly during her life. Upon her death the trust fund is to be equally divided between trusts B and C, but if either trust shall have terminated before her death, the trust fund shall be paid into the then existing trust, and if both trusts shall have terminated before her death, the trust fund shall be divided between the testator’s two grandchildren (children of the testator’s son) or survivor, and if both said grandchildren are then deceased, the trust fund shall be divided among the testator’s issue by right of representation.
Trust B provides that one third part of said residue shall be held in a separate trust by the general' trustees for the benefit of the testator’s son, the son’s'wife, and their two children. Provision is then made for payments quarterly from the net income of $625 to the grandchildren, $625 to the son’s wife for life or until she remarries, and the balance to the son during his life. Upon the son’s death, the income that he would have been entitled to receive had he lived is to be divided quarterly. between the two grandchildren or survivor during life. ' Upon the death of the son and the death or remarriage of the son’s wife, the trust fund is to be divided between said grandchildren or survivor, and if both grandchildren are then deceased, the fund is to be equally divided between trusts A and C or paid over to the trust fund then existing, if either-trust shall
Trust C provides that one third part of the residue shall be held in a separate trust by the general trustees for the benefit of the testator’s daughter, the net income of which shall be paid to her quarterly during her life. She is entitled to appoint by will to whom said trust fund shall be payable upon her death. In default of such will the trust fund, upon her death, shall be equally divided between trusts A and B, but if either trust shall have terminated before her death, the fund shall be paid into the then existing trust, and if both trusts shall have then terminated, the fund shall be divided among the testator’s issue by right of representation.
The testator’s daughter, for. whose benefit Trust C was established, was married the year after her father died. At the time of his death, and for many years before, his daughter was afflicted with a chronic incurable disease, and her condition was well known to him. She died in December, 1939, leaving no issue surviving her, and left a will, duly probated, in which she purported to exercise the power, conferred upon her by her father’s will, by which she devised to her husband, William E. Whitney, all the residue of her property over which she had any power of appointment. Whitney, who is a party to this proceeding, makes no claim upon the income or proceeds of the sale of securities in the special trust, nor under the appointment of himself .by his wife’s will, except for the fund in Trust C as it existed at the time of her death, with certain reservations which are not material to any issue in the case at bar. It is unnecessary to state in detail other provisions of the will which deal in general with the right of the beneficiaries to alienate their interests, the freedom of such interests from the claims of creditors, and general instructions to the executors and trustees as to the performance of their respective duties, nor is it necessary to go into the details of the codicil where provision is made for the crediting against the income payable to the son’s wife of such
1. “The accepted rule for the interpretation of a will is to ascertain the intent of the maker as gathered from the testamentary language read in the light of the knowledge possessed by him and of the material circumstances attendant upon him at the time, attributing due weight to all the words used, not stressing provisions of doubtful meaning but searching for a general plan from a survey of the whole instrument, presumably designed to express a consistent and harmonious purpose, and then to give effect to that intent unless prevented by some rule of law.” Sewall v. Elder, 279 Mass. 473, 476-477, and cases cited. Each will must be examined in its entirety in an endeavor to find out the purpose disclosed, Prescott v. St. Luke’s Hospital of New Bedford, 280 Mass. 229, 232, and it is familiar law that the grammatical construction, or the order of particular sentences, is never allowed to defeat the general intention of the testator, as clearly manifested by all the provisions of the will taken as a whole. Miller v. Parish of the Epiphany, Winchester, 302 Mass. 323, 326.
An examination of the entire will discloses that the testator had two dominant purposes in mind, (1) to safeguard his investments in the insurance and securities companies, and (2) to provide for his immediate family. After making the minor provisions for his wife and niece, he proceeded immediately, by careful provisions, to establish the special trust, the income of which at the time of his death was approximately $60,000 per year. Although he authorized his special trustees to devote the whole or any part of the income received by them to the purchase of additional shares of stock under subparagraph (g), and for the termination of the trust by sale of all property held by his trustees, it is evident that he realized there might be net income unexpended by his trustees for purchases as authorized. Accordingly, he proceeded to provide, in subparagraph (b), for the payment of such net income, as hereinbefore set out, by directing that it be equally divided semiannually among his wife, son and daughter, and the survivors, or
The word “provided” in common speech naturally expresses a qualification, limitation, condition, or an excep
But the difficulty does not end here, for the testator concluded subparagraph (b) by providing that if there were no “such” children, that is, of his son or daughter, “the income shall go into the residue of my estate.” In other words, after providing for the payment of the share of income to the children of the deceased child, the testator went further and sought to provide that if there were no children, “the income,” theretofore payable to the deceased child, should go into the residue. The words “such children” obviously refer to the children of either the son or the daughter, and the words “the income” refer to “the share of income” payable to a deceased child at time of death. The alternative provisions as to children surviving, or there being no children, relate to the times of death of the testator’s children. . See Stone v. Bradlee, 183 Mass. 165, 170.
It is to be assumed that the testator did not intend to incorporate inconsistent provisions in his will. The various provisions are to be so construed, if they reasonably can be consistently with the testator’s intention, as to avoid repugnancy. “In case of irreconcilable differences, a clear and unambiguous provision, coming later in the will, controls, as being more likely to express the final purpose of the testator. For the purpose of arriving at the testator’s intention in respect to any particular portion or portions of
But the son contends that any difficulties arising from the language used in said subparagraph (b) should be resolved by reading the word “when” for “if” in the last clause of the paragraph. See Janney v. Sprigg, 7 Gill, 197, 202:; Hyde v. Rainey, 233 Penn. St. 540, 547; Owen v. Field, 102 Mass. 90, 105. He would then have the proviso part of this paragraph read as follows: “provided, however, that if my son or daughter shall die leaving children before the special trust is terminated, the share of income payable to my deceased child at the time of death shall thereafter, until the death of the survivor of my deceased child’s children, be divided semi-annually among my deceased child’s children, and when there be no longer any such child or children the income shall go into the residue of my estate.” But we are of opinion that it is unnecessary to resort to this treatment of the testator’s language in order to deter
The other dominant purpose that the testator indicated by the language of his will was to provide for his family. He may well have assumed that his son, his son’s wife, and their children would survive his wife. He knew that his daughter was afflicted with an incurable disease. She was unmarried. The testator knew at the time he made his will and codicil and at the time of his death, that his wife was possessed of an estate in her own right of several hundred thousand dollars. He had in mind clearly the agreement that he and his wife had entered into with their son and his wife, which contained provisions for the support by the son of his wife. In working out trusts A, B and C, as hereinbefore pointed out, there is a general scheme of survivorship subject to the right of the daughter to appoint by will to whom the fund in trust C shall be payable on her death, and further limited as to possible equality of outcome by the fact that trust B makes provisions for the son’s wife and children. As things have turned out, the widow and the daughter have deceased, leaving the son, his wife and their children as the beneficiaries under trust B, which has been augmented, it is assumed, by so much of the fund in trust A as was paid into it upon the death of the widow. The book value of trust B, after the addition of one half of trust A, is approximately $86,000. Its actual value in June, 1940, was approximately $78,000. In the meantime, the current annual income from the special trust has dropped to approximately $13,000, and the estimated annual net income from trust B is approximately $2,300. It appears that at no time since the death of the testator has the net income from trust B been sufficient to make any payment whatever to the son’s wife. The testator must have realized that he was leaving the way open for his daughter to dispose of the share of the residue that was held in trust for her, although, of course, there was the possibility that she might not exercise the power conferred upon her, in which event that trust fund would go into one or both of the others, as the case might be. But for some reason which we
In the application of the familiar general rule as to the interpretation of wills, we are of opinion that the decree of the Probate Court was right in its instructions as to the disposition of the net income of the special trust, so called, to the effect, in the circumstances, that the son is. entitled to one half thereof during his life, or until the termination of the special trust, in the event that it is terminated during his life, and that the other one half is payable to the general trustees under trust B.
2. There remains for disposition the question of the trustees of the general fund as to the appropriation and disposition of any income received from the special trust. The “absolute discretion” conferred upon the special and general trustees has already been referred to. It is true that the general trustees have, up to the moment, received no money from the special trustees, and accordingly, that they have had no opportunity or occasion to exercise the discretion conferred upon them with respect thereto, but it is apparent that they will soon be called upon to exercise such discretion, so that it is as well to answer their inquiry as to invite a return of the case to this court with the same
We are of opinion that the question involved is settled by what was said in Dumaine v. Dumaine, 301 Mass. 214, and that it is unnecessary to go over the matter again. The general trustees, under subparagraph (k), have discretion, after serious and responsible consideration, short of arbitrary or dishonest conduct, when they have to determine whether any money or other properties received by them from the special trustees are principal or income, and what shall be charged against principal and what shall be charged against income.
The decree of the Probate Court is to be modified in respect to the answer to the question of the surviving trustees under the will of each of the three trusts established by Article Fifth of said will so as to conform to this opinion and as so modified is affirmed. Costs as between solicitor and client are to be in the discretion of the Probate Court, to be paid out of the trust funds.
Ordered accordingly.