317 Mass. 57 | Mass. | 1944
George W. A. Williams of Boston died on March 21, 1891, at the age of seVenty-one years, leaving three children, Georgianna Albree, Joseph B. Williams and Helen Ladd Williams, and his widow Harriet C. Williams, who was his second wife and not the mother of the children.
Georgianna Albree died on April 8, 1894, her husband George Albree died on August 7, 1929, and George Norman Albree, their .only child, is the administrator with the will annexed of the estate of each of his parents.
Joseph B. Williams died in New Jersey on May 15, 1928, leaving three children, Francis C. Williams, Pearce Pen-
Helen Ladd Williams died without issue and unmarried in New York on January 27, 1925. By her will she gave the residue of her estate, one third to her nephew said George Norman Albree, one third to her niece said Constance Williams, and one third to her grandniece said Helen B. Kalenborn. Said George Norman Albree is surviving executor of the will of Helen Ladd Williams.
The widow of the testator, Harriet C. Williams, died on January 8, 1920. By her will she divided the residue of her estate among Albert H. Caverly and Mary 0. Dalzell who were her relatives, Austin E. St. Clair and Lillian B. St. Clair who were her friends, and Annie W. Williams and Mary Louise Williams who were nieces of her late husband, the testator. All are now dead except Mary O. Dalzell, but their personal representatives are before the court.
The presently material provisions of the will of George W. A. Williams are the following. By item 21 he gave the residue of his estate, real and personal, to trustees, in trust to pay specified annuities during the lives of various annuitants listed again in item 28, and by item 25 he gave a further annuity for life to his grandson Pearce Penhallow Williams, who was only seven years old when the testator died and who was not mentioned in item 28. The annuitants included among others the testator’s widow and his three children. As was said in Taylor v. Albree, 309 Mass. 248, 255, 256, “The testator’s near relatives are the principal objects of his bounty. Yet his method of benefiting them is not by distributing his estate among them. It is by creating a group of annuities, each for the life of the annuitant, each carefully guarded against assignment or
By item 25 the testator’s grandson Pearce Penhallow Williams was given an annuity of $1,200 a year for his life, beginning at his twenty-first birthday which occurred in 1905. To his annuity also were attached spendthrift provisions by reference. The full text of item 25 may be found in Taylor v. Albree, 309 Mass. 248, at pages 250 and 251.
Item 28 is the section most vital to the questions now presented. It reads as follows: “Upon the decease of all the annuitants herein mentioned, viz: my wife, Harriet C. Williams, my sister Annie B. Merriam, my brother James M. W. and Mary L. his wife, my son Joseph B. and my daughters Georgianna and Helen L., my nieces Annie W, Mary L, and Grace W, and Harriet E. Coffin, I direct my said Trustees and their successors to pay over and convey all the trust funds and estate of every kind then m their hands to my legal heirs and representatives whoever they may be, to be determined by, and the distribution to be made in accordance with, the Statutes of this Commonwealth. To have and to hold the same to them and their heirs and assigns forever and this trust shall thereupon be terminated and cancelled.”
We have had occasion to interpret the same will twice before. In Abbott v. Williams, 268 Mass. 275, there remained alive in June, 1928, only three of the annuitants, Mary L. Williams the widow of the testator’s brother James, Annie W. Williams a niece of the testator, and Pearce Pen-hallow Williams.- The trust estate then greatly exceeded the amount needed to support those three annuities. Persons who claimed to be remaindermen under item 28 sought a distribution of such part of the trust estate as was not needed to support those annuities. The court refused to order a distribution, saying (page 283) that “the testator
In Taylor v. Albree, 309 Mass. 248, 249, the question was “whether upon the death in 1939 of the last surviving annuitant other than Pearce Penhallow Williams, the principal trust set up by the will came to an end and the fund became distributable under the twenty-eighth article [item] of the will or whether the trust must continue until the death of Pearce Penhallow Williams in order to support an annuity of $1,200 a year given to him by the twenty-fifth article [item].” It was held that item 28 must yield to item 25 to the extent that the trust could not end until the annuity to Pearce Penhallow Williams should cease at his death. In that case there was evidence that the annuity to him in item 25 was an afterthought and that his name was omitted from items 27 and 28 by oversight of the draftsman. The court had no occasion to decide at that time who would be entitled to share in the ultimate distribution.
Pearce Penhallow Williams, the last surviving annuitant, died testate without issue on November 23, 1942. At his death the trust terminated. The trustees petitioned the Probate Court for instructions as to the distribution. The facts stated in their petition were found to be true. The cáse was reserved and reported to this court without decision.
The trust estate now consists wholly of personalty, although some of it is the proceeds of realty once owned by the trust. In item 28 the instruction is to “pay over and convey” the principal of the trust estate “to my legal heirs and representatives whoever they may be.” The word “heirs” is used accurately as meaning the persons entitled to inherit realty. The word “representatives” in the same phrase does not mean executors or administrators, as it does in some connections, but means statutory distributees of personalty. Bates, petitioner, 159 Mass. 252. Eager v. Whitney, 163 Mass. 463. Olney v. Lovering, 167 Mass. 446, 448. Bailey v. Smith, 214 Mass. 114, 120. The testator intended in the final distribution to let the law take its course according to the nature of the property to be distributed. The case
Whether the trust estate includes realty for purposes of distribution, or not, is material only if the “legal heirs and representatives” are to be determined as of the time when the testator died on March 21,1891, at which time the widow of a man leaving issue was a distributee of personalty but not an heir of realty. Pub. Sts. (1882) c. 125, § 1 (1); c. 135, § 3. Her dower right in realty did not constitute her an “heir.” Proctor v. Clark, 154 Mass. 45, 50. But in 1939 and 1942 both realty and personalty of a man leaving issue but no widow (for here the widow died in 1920), passed by statute to the same persons in the same shares. G. L. (Ter. Ed.) c. 190, §§ 2, 3. A testamentary provision for distribution to heirs or distributees adopts the statute not only as to the persons benefited but also as to the shares in which they take. Tyler v. City Bank Farmers Trust Co. 314 Mass. 528, 530.
Some of the parties contend that the words “my legal heirs and representatives whoever they may be” in item 28 mean the persons who were such on March 21, 1891, when the testator died. That is the contention of those who claim under the testator’s widow Harriet C. Williams who died on January 8, 1920, and consequently could not be within the class if determined as of 1939 or 1942. They are joined in this contention by the executor of the will of the testator’s daughter Georgianna Albree who died in 1894, by the executor of the will of the testator’s daughter Helen Ladd Williams who died in 1925, by the administratrix with the will annexed of the estate of the testator’s son Joseph B. Williams who died in 1928, and also by the testator’s grandchildren George Norman Albree and Constance Williams personally, although they would take some share upon any theory.
It is true that in the absence of indication to the contrary, a gift to the heirs or distributees of a person is construed to mean those who are such at his death. Tyler v. City Bank
Doubtless the fact that the legal heirs and distributees of the testator living at his death, including his widow, were all annuitants, and therefore could not possibly enjoy the residuary gift personally, is not conclusive as showing a later determination of the class. Tyler v. City Bank Farmers Trust Co. 314 Mass. 528, 531, 532. The fact that the residuary gift took the form of a direction to the trustees “to pay over and convey” the trust estate in distribution, has some weight but not decisive weight in showing a later determination of the class. Ibid. 532. New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93, 103, 104. The fact that spendthrift provisions were attached to all the annuities to the children of the testator does tend to show that he did not intend them to acquire at his death a vested remainder interest that they could alienate and that could be taken by their creditors. Tyler v. City Bank Farmers Trust Co., supra, 533. Of some importance is the consideration that under the law as it existed in 1891 the widow in the circumstances existing was a distributee though not an heir. It is unlikely that the testator would intend to give her a remainder interest that she never could enjoy and that probably would pass from her to persons not of his kin in whom he had no interest.
In addition to those considerations there are words that would turn the scale in favor of a later determination of the class even though without them the case were more doubtful than it is. The class was to consist of the testator’s legal heirs and representatives “whoever they may be.” The will speaks “the language of the testator at the time of his death” (Gray v. Sherman, 5 Allen, 198, 199; Bassett v. Nickerson, 184 Mass. 169, 175; Lovering v. Balch, 210 Mass. 105, 107; Galloupe v. Blake, 248 Mass. 196, 200; Smith v. Livermore, 298 Mass. 223, 232, 233), and the uncertainty expressed by the testator as to the persons who would com
Normally the later time for the determination of the class would be the time fixed for the distribution, namely, the time of the death of the last survivor of the annuitants, who was Pearce Penhallow Williams, and who died on November 23, 1942. In item 28 the dominant purpose was to provide for a distribution “upon the decease of all the annuitants herein mentioned.” The word “herein,” we think, referred to the whole will, and not to item 28 by itself. The error was in omitting Pearce Penhallow Williams in the attempt to specify the annuitants “herein” mentioned. The general description of the annuitants, we think, is not limited by the defective specific enumeration introduced by “viz,” especially where as here the plan and structure of the will supports the conclusion that distribution was to be made and the distributees ascertained as of the time of the death of the last surviving annuitant. Taylor v. Albree, 309 Mass.
We think that the trust estate must be divided among the “legal heirs and representatives” of the testator as though he had died intestate at the time of the death of Pearce Penhallow Williams on November 23, 1942. Since the persons taking are not in the same degree of kindred, they take “according to the right of representation.” G. L. (Ter. Ed.) c. 190, § 3 (1). The living grandchildren of the testator, George Norman Albree and Constance Williams, will take one third each, while the remaining third will be divided equally between Shirley H. Thoms and Helen B. Kalenborn, the children of a deceased grandson.
A subordinate question remains. During the period of. the annuity to Pearce Penhallow Williams there were months in which the income of the trust estate was insufficient to pay the annuities in full. The aggregate of the deficiencies in the payment of his annuity between May 1, 1905, and October 1, 1915, was $4,100. The executors of his will now contend that they are entitled to have that sum paid to them in the distribution of the trust. The testator provided in item 27 of his will for possible deficiency as well as for possible excess of the income available for payment of annuities. The text of that item appears in Abbott v. Williams, 268 Mass. 275, 278, 279, and is discussed to some extent in Taylor v. Albree, 309 Mass. 248, 251, 254. That item provides in the first place that in case of insufficiency of income to pay the annuities, the annuitants (other than the widow) shall “bear and suffer such deficiency pro-rata.” The Probate Court adjudicated in 1910 that that applied to the
A decree is to be entered in accordance with this opinion. The allowance of costs and expenses of this appeal is to be in the discretion of the Probate Court.
So ordered.