R.I. Hospital Trust Co. v. Thomas , 73 R.I. 277 ( 1947 )

I disagree with the opinion of the majority that the testator intended to make a class gift of the residue of his estate. After carefully considering the ninth clause which disposes of that residue and applying to it certain well-established rules for the construction of wills, I am clearly of the opinion that its language discloses an intention of the testator to give the residue to his children as individuals and not as a class; and that such gift vested at his death, subject to be divested only if, before the termination of the trust, a child should die leaving issue in whom such child's share could vest. And I am also of the opinion that paragraph (j) discloses a particular intention to exclude Mildred at all events from ever becoming a purchaser under the will, but beyond such exclusion it clearly fails to go.

Under this construction, Claude having survived the testator, his share vested and did not divest at his death, because, by virtue of paragraph (j), he left no issue in whom his share could vest. There being no gift over in the event of a child dying without issue, his share, therefore, passed to his personal representatives.

The fact that under such a construction Claude's share does not divest but passes to his personal representatives thus enabling Mildred to benefit indirectly in the testator's estate ought not to mislead us into inferring, without any support in the will therefor, that the testator could not have intended such a result. We cannot supply an omission in the testator's will in that manner. His intention is to be sought in what he has written and nothing is to be inferred except by necessary implication.Matteson v. Brown, 33 R.I. 339. We have held that necessary implication means "so strong a probability of intention, that an intention contrary to that which is imputed to the testator, cannot be supposed." Bliven v. Borden, 56 R.I. 283. Of course the testator's intention, testamentarily expressed, overrides all rules of construction, Kenyon, Petitioner, 17 R.I. 149, but to have that effect it must be found in his express words. Gardner v. Viall, 36 R.I. 436.

Here the testator has not, by clear and explicit language, made his intention known. If he had, it should prevail regardless of precedents and rules of construction. Perry v. Hunter,2 R.I. 80. On the contrary we must search for it and in doing so we must call to our aid certain well-established rules of construction. We must not speculate or conjecture about it. And we should not attempt to reconstruct the testator's will on that basis. Redding v. Rhode Island Hospital TrustCo., 67 R.I. 41. Our duty is to construe the language of the will in the light of those rules of construction. In performing that duty we must confine ourselves to the language of the will, always remembering that it is what the testator actually did and not what he meant but failed to do which is to be given effect.Industrial Trust Co. v. Wilson, 61 R.I. 169.

The court's construction, it seems to me, does not observe those canons. It brushes aside certain rules of construction which stand in its way or it merely refers to them in passing. The cardinal rule of construction that the intention of the testator is paramount is relied upon by the court to justify its disregard of other subordinate rules. But such intention does not appear anywhere in the ninth clause or elsewhere in clear and explicit language, and, as was said above, it is only in such circumstances that recourse to the precedents and rules of construction may be dispensed with. On the whole, I have been unable to remove from my mind the conviction that, when closely analyzed, the court's construction is based upon conjecture; upon what the testator must have intended to do in order to bar Mildred from ever receiving any of his property not merely as a purchaser under his will, but also even indirectly, dehors the will.

The results of such construction are far reaching. They go beyond barring Mildred. They exclude not only Claude's estate from receiving his share but they exclude the estate of every child who dies, before the termination of the trust, leaving no issue or if having left issue, such issue dies before the termination of the trust. In other words, the testator's gift of his residuary estate instead of vesting at his death in his named children subject to being divested on the death of any child, before the termination of the trust, leaving issue, is contingent upon some member of the class being alive after that event. This is in spite of the fact that paragraph (j) has no application to the issue of any child other than Mildred, the issue of Claude, and also in spite of the further fact that there is no reference in the ninth clause to any child dying without issue.

The court's opinion justifies these results by saying in effect that the testator must have intended a gift to his children as a class, or he would have otherwise provided in his will for a gift over in the event of any child dying, before the termination of the trust, leaving no issue, just as he did in the case of a child dying leaving issue. That he did not so provide is convincing proof, the court holds, that he intended a class gift and so there was no need of such a provision. I find no authority for that view. Rather the law is that where a gift is made to A for life and after his death to his children in equal shares, with a direction that if any child die in the lifetime ofA, the issue of such child shall take his share, every child who survives the testator takes a vested interest subject to be divested if he dies in the lifetime of A leaving issue, but if he dies without issue his share is not divested. In re Norris,46 R.I. 57. In the light of its failure to apply the law as there stated it seems to me that the court's opinion is in this respect somewhat strained, to say the least.

Not only is it strained in that respect but it is in direct conflict with certain well-recognized rules for the construction of wills. First of all, it disregards the rule that where two constructions are reasonable, but one may lead to intestacy and the other does not, the law favors the latter construction.Tirocchi v. Tirocchi, 67 R.I. 71. It has been said that the law abhors intestacy and that courts manifest such abhorrence especially in the case of a gift of the residue. 28 R.C.L. 228, § 189. We have often taken that view. Stone v. Bucklin,69 R.I. 274; Hayden for an Opinion, 51 R.I. 117; Aldrich v.Aldrich, 43 R.I. 179; Staples v. D'Wolf, 8 R.I. 74.

Under the court's construction here there is a possibility of intestacy of the residue; there can be none under my construction. In order to avoid intestacy under their construction there must be a member of the class alive throughout the life of the trust and at its termination to receive the income and ultimately to take the principal. Should all the children die without issue or should they leave issue who do not survive the termination of the trust, there would be an intestacy.

In thus construing the will, the court has disregarded another rule, namely, that the law favors the vesting of estates, and that, if the intention be doubtful, the legacy will, if possible, be held to be vested, rather than contingent. RhodeIsland Hospital Trust Co. v. FitzGerald, 49 R.I. 319; Powers v. Home for Aged Women, 58 R.I. 323. In the latter case we said "that an estate or interest under a testamentary instrument will not be held contingent, unless the intent that it be so held is clearly manifest in the instrument."

A gift of the residue will especially be construed to be vested. This rule has heretofore been consistently applied by this court. Stone v. Bucklin, supra; Aldrich v. Aldrich,supra; Staples v. D'Wolf, supra. In the Staples case it was held that in the case of a gift of residue "a very clear intent must be shown to postpone the vesting, because intestacy would often be the consequence of a lapse of such gift and always may be." (italics supplied) In line with that practice, while recognizing the rule, we recently held such a gift to be postponed, but in doing so we found a clear intent to that effect in the will. Rhode Island Hospital Trust Co. v. Beckford,67 R.I. 492. There we said: "An intention to defer the vesting of a gift in remainder is not to be inferred in the absence of aclear intent on the part of the testator to that effect, for the law favors the vesting of a devise or bequest immediately upon the death of a testator."

I find nothing in the will before us that shows a very clear intent to defer vesting. Even the court says that the gift to the children vested at the testator's death. Later in its opinion, however, it concludes that the gift is contingent upon a child or issue of a deceased child surviving the termination of the trust. I cannot follow the court's reasoning here. Either the gift is vested or it is contingent; it cannot be both. It seems to me that due regard for the rule that the law favors vesting, and for the precedents where the rule has been applied, leads incontestably to the conclusion that the gift of the residue by the ninth clause of this will is vested and not contingent.

There is a further reason why it should be so construed. The immediate interest, which is the right to receive the income of the trust, is in the same persons in whom is the ultimate interest which is the right to receive the principal at the termination of the trust. In such a case it has been held that the legatees of the income are to have the principal at all events. Staples v. D'Wolf, supra. In that case this court gave the following reason for the rule: "The immediate interest here is given to the same persons to whom the principal is to go. There is, in this case, no gift over of any share, in the event of any of the children dying without issue. For want of such gift over an intestacy might be produced, an event which the testator could not have intended".

Finally, I am of the opinion that the court has not correctly applied the rule for construing testamentary language as importing a gift to a class or a gift to individuals. Where a gift is to individuals, naming them, and there is nothing in the will to show that the testator had a different intention it is generally held that it is a gift to the named individuals and not a class gift. Where the gift is to individuals who are both named and referred to by a class description without anything more appearing as to the testator's intention, it is also held to be a gift to individuals and that the class description has been added merely by way of identification. Chase v. Peckham,17 R.I. 385; Church v. Church, 15 R.I. 138.

In the instant will, in paragraph (i), the individuals, who are severally named in paragraph (g), are referred to as "my said children". The court takes this to be an instance of a description of a class. I think it is no more than a reference to the several individuals who were previously specifically identified by name in paragraph (g). Assuming, however, that we have here an instance where both descriptions occur, is there anything to show that the testator intended his gift to be to his children as a class rather than as individuals? I find nothing. The mere fact that he has not provided a gift over in the event of a child dying without issue before the termination of the trust does not show such an intention. As was stated above, the law in such a case vests the interest in the individual and it passes to his personal representatives. If there were some uncertainty in the number of the persons and of the size of their respective shares, at the execution of the will, that would be, as we said in Rhode Island Hospital Trust Co. v. Proprietorsof Swan Point Cemetery, 62 R.I. 83, some indication of an intention to make a gift to a class rather than to individuals, but there was not. In such circumstances we further said in that case: "the gifts are ordinarily held to be to them individually and not to them as a class, even though in some instances the beneficiaries are referred to as a class as well as by name."

Being of the opinion then that the gift of income under paragraph (g) and the gift of principal under paragraph (i) are gifts to the testator's named children as individuals and not as a class and that such gifts vested as to each child at the testator's death subject to be divested only in the event of the decease of such child leaving issue in whom his gifts could vest, I would advise that it is the duty of the trustees: (1) To pay, during the trust, Claude's share of the trust income to his personal representatives; and (2) to pay, at the termination of the trust, his share of the principal to such representatives.