117 Me. 357 | Me. | 1918
Viola Phipps, late of Brunswick, died on the eighteenth day of February, 1913, leaving a will, which has been duly proved and allowed. The residuary clause of that will is as follows:
“I give and bequeath to Mildred Strout to hold in trust all the rest and residue of my personal property, and I wish it to be distributed to the children of Leon B. Strout and herself or their descendants at such times as she sees fit for their best benefit.”
On October 28, 1914, prior to the commencement of the present action, the executor of this will filed a bill asking for instructions and for the construction of certain portions of said will; to that bill the present plaintiff was a party; a Justice of this court entered a decree that one of the preceding clauses of said will was invalid as contrary to the rule against perpetuities and directed the executor, after paying certain legacies, to pay and deliver the remainder of the property mentioned in the clause so held to be invalid, to the residuary legatee. Acting under this decree Mr. Sawyer, the executor, paid and delivered to Mildred Strout, who had qualified as trustee, cash and securities to the amount of $14718; the executor has about $700 in his hands for further distribution.
The plaintiff, who is the father of the three beneficiaries named in the residuary clause, and the next of kin and sole heir of the testatrix, now claims that' the residuary clause is void and contrary to the rule against perpetuities, and that Mildred Strout, the mother of his children, shall account to him for the fund held by her. In other words, he.no.w endeavors to deprive his children of the benefit of a fund which the testatrix entrusted to their mother, and not to him, “for their best benefit.”
Without expressing any opinion as to whether this contention is now open to the plaintiff after the decree in the former suit to which he was a party, we proceed to examine his claim which his counsel
It should be borne in mind that the rule against perpetuities is not, like a rule of construction, a test more or less artificial, to determine intention. Its object is to defeat intention. Therefore every provision in a will is to be construed as if the rule did not exist, and then to the provision so construed the rule is to be applied. Gray on Perpetuities, page 378. In so construing the provision in question the intention of the testatrix is to be gathered from the entire will and not from the residuary clause standing alone.
The rule concerns itself only with the vesting, the commencement of estates, and not at all with the termination. It makes no difference when such a vested estate or interest limited terminates. Pulitzer v. Livingston, 89 Maine, 359, 365, 372.
Moreover, when the gift of a legacy is absolute, and the time of payment only is postponed, the time not being of the substance of the gift is held to postpone the payment, but not the vesting of the legacy. Kimball v. Crocker, 53 Maine, 263, 271. And the discretionary power in the trustee as to time of payment does not prevent the vesting of the legacy. Nares’ Executors v. Van Shaick, 20 Wend., 565; Kimball v. Crocker, supra.
The will in this case is, in some respects, inartificially drawn; the scrivener evidently did not have in mind the rule against perpetuities, nor the distinction between vested and contingent interests; he appears not to have realized, or to have disregarded the care which should be observed in the creation of trust estates; nor does he appear to have considered the various changes which might arise after the death of the testatrix.
Yet carefully considering the entire will we think that it is not difficult to ascertain the intention of the testatrix. At her death three children of Leon B. Strout and Mildred Strout were living, Marjorie, Marian and Roger. In the preceding paragraphs of the will, wherever provision is made for them, the testatrix makes it clear that there is to be no discrimination between them; they are to “share and share alike,” or to “share equally.”
Referring to the residuary clause we see no reason to doubt that the children were to share equally in the legacy thereby bequeathed.
Applying then the rules and principles hereinbefore referred to, and having in mind the familiar principle that a legacy or devise should be considered as giving a vested rather than a contingent interest, (Kimball v. Crocker, 53 Maine, 263, 267), we think that the residuary clause of the will of Viola Phipps does not violate the rule against perpetuities. The words, “I wish” are equivalent to a command; they are mandatory. Clifford v. Stewart, 95 Maine, 38, 46. The trustee took the legal estate; the three children Marjorie, Marian and Roger, took the beneficial or equitable estate; no other interests were bequeathed; all interests legal and equitable vested at the death of the testatrix. The bequest is present and absolute; the time of payment only is postponed.
In Manice v. Manice, 43 N. Y., 303, on page 369, it is said, “Where the terms of a bequest import a gift and also a direction to pay at a subsequent time, the legacy vests and will not lapse by the death .of the legatee before the time of payment has expired; but will pass
A provision very similar to the provision in the case before us was sustained in Morton v. Southgate, 28 Maine, 41. The case of Rogers v. Rogers, 11 R. I., 38, 72, et seq., is also very instructive. The bill must be dismissed.
In the agreed statement which is made part of the case, the parties request and agree “that the reasonable expenses, costs and counsel fees of the parties both plaintiff and defendant in the cause be allowed and ordered by the court to be paid out of the fund now in the custody of the Clerk of this Court, and for that purpose the parties by their attorneys shall file their bills for such expenses, costs and counsel fees with the Clerk of this Court, to be passed upon by the single justice reporting the cause, after mandate by the Law Court, and incorporated in the final decree rendered in said cause, pursuant to mandate.” The fund in the custody of the Clerk referred to in above agreement consists of the securities which have been turned over to the trustee, Mildred Strout, by the executor of the will pursuant to a decree entered upon the earlier bill in equity filed by the executor and mentioned in the early part of this opinion; the securities were so deposited to abide the final decree and order in this cause.
Bill dismissed. The securities of the trust, deposited with the Clerk of Courts, are to be restored .to the Trustee. The reasonable expenses and counsel fees of the Trustee, Mildred Strout, incurred in the protection ‘ of the trust may be allowed and paid from the fund. The Executor may be allowed his reasonable expenses and for his services in this cause, the same to be retained from the funds in his hands.