Boston Safe Deposit & Trust Co. v. Stratton

156 N.E. 885, 259 Mass. 465, 1927 Mass. LEXIS 1290

• Court: Massachusetts Supreme Judicial Court
• Decided: May 20, 1927
• Status: Published

Opinion

Rugg, C.J.

These are petitions for instructions as to the meaning of clauses in the will of Ira Stratton.

The rule for the construction of wills, briefly stated, is that the intention of the testator is to be ascertained from the whole instrument, attributing due weight to all its language, and then to give effect to that intent unless prevented by some positive rule of law. Ware v. Minot, 202 Mass. 512, 516. Temple v. Russell, 251 Mass. 231, 535.

The testamentary words and the facts to which this rule is to be applied in the case at bar are as follows: By clause Fourth of his will the testator created a trust fund of $50,000, the income to be paid to life tenants, all of whom are now deceased. The will then proceeds, “And at the decease of both my son and daughter to pay over and distribute said trust fund among such issue of my said children as may then be living, share and share alike.” Both son and daughter have died, leaving no issue. In this event the testator made provision for the division of this particular trust fund into three unequal parts, with special and differing words of gift as to each part. As to the first part, the testamentary words now operative, and to be construed, are these: “I direct my said trustees to pay from said trust fund to my cousin Royal A. Stratton . . . if he be then living and if he be not living to his widow and daughter, share and share alike or to the survivor of them the sum of five thousand dollars.” The circumstances which have arisen and with reference to which the intention of the testator as displayed by these words must be discovered, are these: The last life tenant, who was also the last surviving child of the testator, died in 1925, Royal A. Stratton died in April, 1887, his wife in the preceding February, and their daughter in August, 1900, she having left a will in which her husband, also now deceased, testate, was the residuary legatee.

We are of opinion that under the frame of the will the testator intended that this $5,000 should go to his cousin Royal if he survived the life tenants, and, if he did not so survive, then to his widow and daughter and the survivor of them, absolutely, subject only to the contingency that no issue should survive the testator’s own children. The gift to the cousin Royal is made subject to the condition that he be alive at the death of the life tenants without issue; but the gift to the widow and daughter of Royal is not made upon that condition. Their right is free from that condition expressly attached to the gift to Royal. Such omission in this context is significant. There is no gift over of this $5,000 in the event that neither the widow nor daughter of Royal live to enj oy the legacy in person. Gifts over are made in specific terms of the other two parts of the $50,000 trust fund created by clause Fourth. That is some indication of a testamentary thought that the $5,000 part of that fund here under consideration had been disposed of fully and finally by the words expressly relating thereto. This conclusion is aided by the general presumption against partial intestacy in an elaborate and carefully drawn will. Jones v. Gane, 205 Mass. 37, 43. The gift to Royal A. Stratton and his widow and daughter was contingent upon the death of the two children of the testator without issue, but it was vested in the widow and daughter and the survivor of those two subject to that contingency and to the further condition that Royal A. Stratton should predecease them or either of them. The result is that in the circumstances here disclosed the interest in this $5,000 vested in the daughter of Royal A. Stratton dependent upon the contingency that there might be issue of the son or daughter surviving them. Upon the removal of that contingency by the events which have come to pass, title in her and in her estate became free and clear. Having become a vested interest in a contingent remainder by the predecease of her father and mother long before the termination of the last life estate, it was transmissible and became a part of her estate. It was not dependent upon her survival of the life tenants. Cummings v. Stearns, 161 Mass. 506, 508. Clarke v. Fay, 205 Mass. 228, 231-236, and cases there collected. O’Brien v. Lewis, 208 Mass. 515, 518. Porter v. Porter, 226 Mass. 204. Stowell v. Ranlett, 238 Mass. 599, 604. Porter v. Molloy, 254 Mass. 398.

The daughter of Royal A. Stratton, as already has been stated, died in 1900, and her executor has administered her estate and died. She left the residue of her estate to her husband, who died testate in 1909. His estate was settled by an administrator with the will annexed, who has since died. All the property of her husband by his will was given to “The Massachusetts Society for the Protection of Dumb Animals,” by which it is assumed that the defendant, The Massachusetts Society for the Prevention of Cruelty to Animals, was meant, because the residue of his estate has been paid to this defendant. In these circumstances it seems likely that all debts of these estates are either paid or barred, and there is no objection to direct payment to this society without the appointment of an administrator de bonis non with the will annexed of either estate. Buswell v. Newcomb, 183 Mass. 111, 114. Minot v. Purrington, 190 Mass. 336, 342. State Street Trust Co. v. Morris, 218 Mass. 429, 431. Springfield Safe Deposit & Trust Co. v. Dwelly, 219 Mass. 65, 71.

The testamentary words as to the second part of the trust fund created and distributed by clause Fourth are these: “I direct my said trustees ... to pay and convey over to the Trustees for the time being of the New Salem Academy located in New Salem, Mass, the sum of twenty five thousand dollars to be held in trust by them, to invest said twenty five thousand dollars and to pay over the income thereof to said Institution so long as it continues to be an institution of learning — but whenever it ceases to be an institution of learning I direct said Trustees to pay said principal sum of twenty five thousand dollars to my heirs at law.”

The facts with reference to which these testamentary words must be interpreted are these: The testator was a graduate of New Salem Academy, as was also his son. In 1856 the testator gave $1,000 to the Academy. The trustees of New Salem Academy were incorporated in 1795 by c. 44, acts of 1794-1795, which is still in force and has never been amended. The trustees have continued to hold regular meetings from 1795 to the present. In 1797 and in 1869 substantial grants were made by the Commonwealth to this corporation. No question is made that prior to 1895 the trustees of the Academy conducted an institution for learning in New Salem. In 1872, when the will of the testator was executed, the trustees had funds in their possession amounting to about $15,000. The school was maintained from the income of these funds and such sums as were paid for tuition. The trustees had the entire management of the institution. They owned three buildings, together with land, one known as the Old Academy and the others as boarding houses. In 1908 they erected another building known as the New Academy building. During the period prior to 1900 there was no other school of high school grade in the town of New Salem. Between 1900 and 1901 the trustees gave over to the town the entire control of the school, to be exercised by the school committee of the town. Thereafter the trustees have continued to own the buildings and the real estate, while the school has been conducted in the buildings under the exclusive management of the school committee, although the trustees have advised with the school committee. All tuition fees have been paid to the town. The trustees have issued catalogues of the school. The trustees establish a rate per year for room, board and tuition for pupils who come from other towns having high schools. A part of this sum is turned over to the town as tuition fixed by it, a part to the person who runs and heats the boarding house, and a part to the trustees. The part turned over to the trustees is used for keeping the buildings in repair. The trustees have not since 1900 instructed the youth, nor elected the teachers, nor passed on the qualifications of students for admission to the school, nor made the returns required by G. L. c. 69, § 4, nor has the Academy been approved under G. L. c. 76, § 1. The diploma awarded to graduates bears the heading “New Salem Academy” and is signed by the chairman of the board of trustees as well as of the school committee and the principal, but its body refers only to the high school. Since 1919, arrangements theretofore existing by word of mouth as to the use of the property of the trustees by the town have been in writing. Rent of $500 per year is reserved to the trustees, but it has been repaid by them to the town. The trustees retain exclusive control over the two buildings known as boarding houses, and let rooms and furnish board to pupils and teachers and others, for which they receive money. They also let these buildings in part, and other property owned by them, for other purposes and derive revenue therefrom. The trustees own certain wood lots where they cut cord wood which they sell to the town for use in heating the buildings occupied by the high school, the library and other town schools. The trustees now have funds amounting to between $50,000 and $52,000. They use the profits received by them from the various rentals above enumerated, the interest from their said funds and the money derived from the sale of wood for no other purposes than those of keeping their several buildings in repair, and in paying certain sums to the town of New Salem each year for use by the town for the agricultural course in the school and for the commercial course in said school. The trustees bought and cleared a field in 1924, which since that time has been used by the school as an athletic field. In 1924 the trustees of New Salem Academy paid to the town of New Salem the sum of $980.50 for the general purposes of the high school, and the sum of $478.08 for the agricultural department, making a total of $1,458.55. Until 1923 the trustees purchased textbooks for the agricultural course in the school.

The New Salem Academy was incorporated and established “for the purpose of promoting piety, Religion & Morality, and for the instruction of Youth in such Languages, & in such of the liberal Arts & Sciences as the Trustees shall direct.” Numerous other powers respecting the receipt of gifts, the holding of property, the management of the institution, and the exercise of numerous named and incidental functions accompanying the maintenance of an academy, are conferred by the charter. It is manifest that the educational corporation established by the charter of 1795 continues to exist. It maintains its corporate organization and performs corporate functions. Essex Co. v. Commonwealth, 246 Mass. 242, 248. Opinion of the Justices, 237 Mass. 619,623. Syrian Antiochean Church v. Ghize, 258 Mass. 74, 80, 81. The inference is justifiable that, with the resources now at the command of the corporation, it hardly could maintain a school of high school grade without aid from some other source. It cooperates with the town, apparently in every practicable way, in the maintenance of an educational institution in New Salem. Its substantial income as well as the use of its buildings is contributed to that cause. To a material degree an educational institution of higher grade and wider opportunity and better instruction is maintained in the town of New Salem by reason of the exercise of its corporate functions by the trustees of the Academy than would be possible in any other way. Seemingly the trustees of the Academy work harmoniously with the town, so far as permissible under present constitutional provisions and the resources of the Academy, to provide an institution of learning in New Salem. The New Salem Academy has not ceased tó be but on the contrary ‘£ continues to be an institution of learning ’ ’ as those words are used in the will of the testator; and it is entitled to receive the $25,000 disposed of by the second part of clause Fourth. No case has come to our attention precisely like the present, but the governing principle is illustrated by several of our decisions. Attorney General v. Butler, 123 Mass. 304. Crane v. Hyde Park, 135 Mass. 147. Quincy v. Attorney General, 160 Mass. 431. Capen v. Skinner, 177 Mass. 84. Dickey v. Putnam Free School, 197 Mass. 468. Thayer Academy v. Braintree, 232 Mass. 402, 408. Reed v. Fogg, 248 Mass. 336. The case at bar is quite distinguishable from Stone v. Framingham, 109 Mass. 303, where an act of the Legislature in substance and effect had authorized the extinguishment of the charitable corporation and that act had been accepted by it.

The bills have been taken pro confessa as to two defendants therein named, and decrees to that effect were entered. These were interlocutory and not final decrees. Hutchins v. Nickerson, 212 Mass. 118, 119. All the other parties to the record have filed a stipulation to the effect that decree may be entered, respecting the $20,000 given by the final words of clause Fourth of the will of Ira Stratton to his heirs at law, and the sum held under clause Sixth of said will, and the last one third held under clause Seventh, that these several sums shall be paid to The New England Trust Company as it is executor under the will of Martha L. S. Ensign, the daughter of the testator, to be distributed in accordance with the terms of her will.

Such stipulation binds the parties thereto. But it does not purport to bind those against whom the bills have been taken pro confessa. When a bill is taken pro confessa, the truth of the facts pleaded is thereby established. But even after a decree pro confessa the court must examine the allegations of the bill and decide that they are sufficient to authorize relief before a final decree can be entered in accordance with the frame of the bill. McArthur v. Hood Rubber Co. 221 Mass. 372, 375, and cases there collected. Forbes v. Tuckerman, 115 Mass. 115, 120.

Therefore it becomes necessary to consider these several testamentary provisions. The words of clause Fourth touching the $20,000 are simply that at the termination of the life estate it shall be paid and transferred "to my heirs at law.” The familiar and general rule of construction is that, unless a contrary intention plainly is manifested by the words of the will, estates shall be regarded as vesting immediately upon the death of the testator, and that his heirs at law are to be ascertained at that time. Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35, 38. Welch v. Colt, 228 Mass. 511, 513, and cases collected. State Street Trust Co. v. Sampson, 228 Mass. 411. Mullaney v. Monahan, 232 Mass. 279, 281. Hedge v. State Street Trust Co. 251 Mass. 410. Ball v. Hopkins, 254 Mass. 347. That rule is applicable to this part of clause Fourth.

The gift in clause Sixth is that, upon the termination of the life estate for the benefit of the daughter of the testator, the principal of the trust shall be paid to such of her children or issue of deceased child as may then be living; but, if she dies leaving no issue, (the event which happened,) then "to pay over and distribute said trust fund between my wife Martha A. Stratton and my son Flavel C. Stratton or if either of them have deceased to pay the said trust fund to the survivor.” Clause Seventh is the residuary clause. Thereby the residue is divided into three equal parts. The part whereby one third is given to trustees to hold for the benefit of the testator’s daughter during her life alone is material at present. She having died without issue, the words of the will direct the trustees “in failure of such issue to pay over and distribute said fund between said Martha A. Stratton and Flavel C. Stratton or to the survivor of them if but one be living at the time of the decease of said Martha L. Stratton.” Martha A. Stratton, the widow of the testator, died intestate in 1890, leaving as her only heirs at law and next of kin the two children of herself and the testator. The son, Flavel C. Stratton, died in 1906 intestate, without widow or issue, leaving as his only heir at law and next of kin his sister, the daughter of the testator and the life tenant of this third part of the residue.

It is not necessary to examine with nicety the legal effect of these parts of the will. Whatever may be the precise nature of the estates thus created, whether vested remainders in the widow and son or the survivor of them, or whether the property is not disposed of by the will in the events that have happened and hence is intestate estate, it is enough to say that in any event the remainder after the life estate ultimately vested in the daughter and is to be paid to the executor of her will, and must be paid to it in accordance with the stipulations filed.

Whether costs as between solicitor and client to the several parties ought to be paid out of the fund, is to be in the discretion of the Probate Court.

Decrees to be entered accordingly.