Greene v. Aborn

10 R.I. 10

• Court: Supreme Court of Rhode Island
• Decided: March 6, 1871
• Status: Published

Opinion

Dubeee, J.

James Russell Greene, of Warwick, by deed, dated September 12, 1864, conveyed to the defendant all his real and personal estate in trust for his own use, subject to certain provisions during his life, and, upon his death, fox the use of his widow and children, until the youngest child attained the age of twenty-one years, or in case of his previous death until the other children attained that age, they to divide the same as directed among such children or their descendants. In case the widow were then dead the whole to be divided, and in case she still survived, two thirds to be divided and one third to be retained for her use during her life, and to be divided as aforesaid upon her death. The deed then proceeds as follows : “ And provided, further, that in case of the decease of all my children during my life, leaving no issue living at my decease, or in case of their decease after my decease, and before my youngest child who survives to attain the age of twenty-one years attains that age, leaving no issue living at the decease of the last survivor of them, then upon the decease of such last survivor of my children or upon the decease of my wife, should she survive such survivor, said trustee or trustees, for the time being shall thereupon convey, transfer, and pay over all said trust estate and property to my aunt, Polly Greene, wife of Paris Greene, of Alfred, Alleghany County, in the State of New York, if then living, or if she shall then have deceased, to those who would then be entitled thereto as her heirs at law, and in such proportions as they would be so entitled had she then deceased intestate, seised and possessed of the same in her own right.”

It is alleged in the bill, and not denied in the answer, that James Russell Greene died March 8, 1866, leaving one child, who died July 21, 1867, being between three and four years old, and his widow. The bill is preferred by Caroline M. Greene, the said widow, and by Mary Greene (named Polly Greene in the trust deed), whose husband is deceased, and by several other persons who, the bill alleges, “ alone would be entitled to any interest under said deed as heirs at law of the said Mary, in .the event of her decease.”

The bill contains the following, to w|t: “ But your orators claim and insist that under and in accordance with the provisions of said trust deed the trusts therein created ought to terminate, and all said trust property should be conveyed, discharged from all trusts, to your orator, the said Mary Greene, she having entered into an agreement with your orator, the said Caroline M. Greene, for the purchase of all the said Caroline’s rights and interests in the same ; or that in any event, your orator, the said Mary Greene, is entitled to a conveyance of two third parts of said property discharged from all said trusts.” The bill prays relief accordingly, and for other relief on other charges in the bill.

We think we cannot now properly order the trustee to convey, discharged of the trusts, either the whole or two thirds of the trust property. The deed directs the trustee, in the contingency which has happened, to convey the trust property, upon the decease of the widow, to the said Mary Greene if then living, “ or if she shall then have deceased, to those who would then be entitled thereto as her heirs at law, and in such proportions as they would be so entitled had she then deceased intestate, seised and possessed of the same in her own right.” The conveyance might perhaps be accelerated with the consent of the persons who are equitably entitled during the life of the widow, and who will be so entitled at her death, if the persons who will be equitably entitled at her death could be previously known. But until the death of the widow it cannot be known who will be equitably entitled to the property then remaining. Mary Greene will be entitled if she is then living; if she is dead, the persons who are ’her heirs at law, being entitled not through her by inheritance, but as persons so designated in the trust deed. But who will be her heirs at law we can only conjecture. It may be that the orators, other than the widow and Mary Greene, would be the heirs at law of Mary Greene if she were now dead; but we cannot say as a matter of law that she will not survive them or will not have other children, or that in some other way other persons may not become her heirs at law at the time of her death. The trustee, therefore, cannot safely convey as proposed until the death of the widow, and we of course cannot direct such a conveyance.

Decree accordingly.