Perry v. Brown
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Opinion
Parichurst, J.
This is a suit in equity wherein the bill is filed by the executors and trustees under the will of Julia P. A. Anthony, for instructions on certain questions arising under the will and involving the construction thereof; the case has been certified to this court, for its determination under cap. 289, § 35, Gen. Laws, 1909, being ready for hearing for final decree.
The will of Julia P. A. Anthony is entirely in her own handwriting, and consists of sixteen pages clearly and neatly written on ordinary legal cap paper. It consists of three clauses, of which the “First” relates solely to directions, as to her burial and that of her husband, to headstones, &c.; the “Second” clause contains directions as to the erection of a certain monument, and the payment of funeral expenses; all these provisions are clear and undisputed.
The “Third” clause of the will under which all disputed questions arise covers the remaining fifteen pages of the will, is all in one paragraph, contains many provisions which are somewhat confusing and, at first sight, contradictory, and inconsistent with each other. It would seem, from the fact that the testatrix uses much legal phraseology, that she must have had before her one or more wills from which she copied such phrases, but it is evident from the general consideration of the whole will that she was not familiar with the meaning of technical legal terms, and did not intend to use them in their precise technical sense.
This “Third” clause opens with a bequest to Swan Point Cemetery Corporation, of $2,000 in trust to use income for perpetual care of certain lots, &c., then follow directions for *207 the sale of enough personal property (within two months after her death) to pay certain specific legacies of money, $1,000 each to six named persons; $500 each to six others; $250 each to two others if living; the will then proceeds as follows, all the words in italics being underlined by the testatrix in the will itself: “The balance and rest, of all my property, real and personal, I give to my dear husband, Frederick E. Anthony, for his personal use, during his natural life, with the exception of some personal properties like jewelry, ornaments or dishes, of which I may make especial provision. Within a week or ten days, after my death, I wish my present residence, 185 Adelaide Avenue, to be put in proper condition, as to convenience and safety, so it can be used as a home for my husband, during the balance of his life, or as long as the executors may feel it wise to continue to have him remain in it, with proper care and attention. One of his peculiarities has been, that however much he might desire to do something, when the time came, he felt he could not then do it, so gentle force may have to be used, to get him to go into the house, but have him if possible understand, it is my wish for him to go there. I would like Mrs. Ora L. Bell to take the position as housekeeper, and companion, at a monthly salary to be decided by the Executors and herself, she to have an assistant to do the cooking, washing, ironing, and perhaps extra help at certain times. If Matthew Baynes should be in my employ, and wish to continue, he is to be retained at forty dollars each month, and his room and board. His work to be to take care of the house inside and out, as he has been accustomed to do, and also give some attention to Mr. Anthony, if the latter should need it at times. Should Matthew Baynes, not be satisfied after giving it a fair trial, he is to receive on leaving five hundred dollars with his wages, but should he remain with Mr. Anthony during his life, he is to then have two thousand (2,000) dollars, for his faithful •services to us both. Mr. Anthony, I desire to have, two attendants, a day, and night one, or still another, if necessary for his comfort. If the executors think it wise, I want a *208 reliable doctor to see him once a month, or oftener if necessary. A carriage is to be hired for his use, every suitable day, for a drive of an hour or longer, as he may desire. I want it made possible for him to end his days, in his own home, and wish Mrs. Bell and attendants to keep him interested with games, and card playing if possible. His own income is first to be used for his support, and expenses, and after that the income I leave is for his use, outside of what I have bequeathed to a few persons. Should his own income, and that which I bequeath to him, not be sufficient to give him what he actually needs for himself, attendants and, certain luxuries, his own personal property should first be drawn upon, and if that is used up, the executors are requested to draw what is necessary from the principal of my estate. What I want is to have my husband made as comfortable as possible, with his own property, and all I leave behind me, which I bequeath for his personal use during his natural life. After my death, all the property, I possessed, or am in any way entitled, at such time, shall hereinafter be called, my said Trust Estate, and shall be held in trust, during the natural life, of my husband, Frederick Eugene Anthony, to be managed in the following manner, in con-, nection with what I have previously written. All income, exceeding, what is necessary for taxes, repairs, incidental expenses, and salary of the Trustees, to be credited to my estate, but to be used freely for the benefit of my said husband, whenever his own income, from the estate of the late Henry Anthony, does not prove at times sufficient, from any cause, but always, his own rightful income, is first to be expended, upon him, and then when necessary, falling back, upon the income accruing from my Trust Estate. I hereby now appoint the following parties, as my Executors, and Trustees of this my last Will and Testament namely: My cousin, George A. Perry, of Galesburg, Illinois; Mrs. Ora L. Bell, of Providence, State of Rhode Island, and my husband ’& nephew, William Richmond Tillinghast, also of said city and state, as joint tenants in trust, for them, and the sur *209 vivors of them, and other the trustees, under these trusts for any time being, all hereinafter called my said trustees, to take charge of, and manage the same. I also give the said George A. Perry, if he feels the position of Trustee, would conflict with other interests, and duties, of his own, power to place some one in this position, who would consider the Trusteeship, the same as George A. Perry will, if he accepts personally the position. The real estate must be kept in good tenantable repair, and the buildings thereon, for the time being, properly insured against loss by fire, and the personal estate kept invested either in the investments in which the same may be, at the time of my death, without being accountable for any resulting loss in so doing, or from time to time, to change the investments, or any reinvest-ments, of the same, as my said Trustees, shall deem best; and with power to my said Trustees at any time, or from time to time to build, or make other improvements, additions, or betterments, upon any part, or parts of the real estate in their discretion, but if this is done, it must be done by changes, not affecting the income
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Parichurst, J.
This is a suit in equity wherein the bill is filed by the executors and trustees under the will of Julia P. A. Anthony, for instructions on certain questions arising under the will and involving the construction thereof; the case has been certified to this court, for its determination under cap. 289, § 35, Gen. Laws, 1909, being ready for hearing for final decree.
The will of Julia P. A. Anthony is entirely in her own handwriting, and consists of sixteen pages clearly and neatly written on ordinary legal cap paper. It consists of three clauses, of which the “First” relates solely to directions, as to her burial and that of her husband, to headstones, &c.; the “Second” clause contains directions as to the erection of a certain monument, and the payment of funeral expenses; all these provisions are clear and undisputed.
The “Third” clause of the will under which all disputed questions arise covers the remaining fifteen pages of the will, is all in one paragraph, contains many provisions which are somewhat confusing and, at first sight, contradictory, and inconsistent with each other. It would seem, from the fact that the testatrix uses much legal phraseology, that she must have had before her one or more wills from which she copied such phrases, but it is evident from the general consideration of the whole will that she was not familiar with the meaning of technical legal terms, and did not intend to use them in their precise technical sense.
This “Third” clause opens with a bequest to Swan Point Cemetery Corporation, of $2,000 in trust to use income for perpetual care of certain lots, &c., then follow directions for *207 the sale of enough personal property (within two months after her death) to pay certain specific legacies of money, $1,000 each to six named persons; $500 each to six others; $250 each to two others if living; the will then proceeds as follows, all the words in italics being underlined by the testatrix in the will itself: “The balance and rest, of all my property, real and personal, I give to my dear husband, Frederick E. Anthony, for his personal use, during his natural life, with the exception of some personal properties like jewelry, ornaments or dishes, of which I may make especial provision. Within a week or ten days, after my death, I wish my present residence, 185 Adelaide Avenue, to be put in proper condition, as to convenience and safety, so it can be used as a home for my husband, during the balance of his life, or as long as the executors may feel it wise to continue to have him remain in it, with proper care and attention. One of his peculiarities has been, that however much he might desire to do something, when the time came, he felt he could not then do it, so gentle force may have to be used, to get him to go into the house, but have him if possible understand, it is my wish for him to go there. I would like Mrs. Ora L. Bell to take the position as housekeeper, and companion, at a monthly salary to be decided by the Executors and herself, she to have an assistant to do the cooking, washing, ironing, and perhaps extra help at certain times. If Matthew Baynes should be in my employ, and wish to continue, he is to be retained at forty dollars each month, and his room and board. His work to be to take care of the house inside and out, as he has been accustomed to do, and also give some attention to Mr. Anthony, if the latter should need it at times. Should Matthew Baynes, not be satisfied after giving it a fair trial, he is to receive on leaving five hundred dollars with his wages, but should he remain with Mr. Anthony during his life, he is to then have two thousand (2,000) dollars, for his faithful •services to us both. Mr. Anthony, I desire to have, two attendants, a day, and night one, or still another, if necessary for his comfort. If the executors think it wise, I want a *208 reliable doctor to see him once a month, or oftener if necessary. A carriage is to be hired for his use, every suitable day, for a drive of an hour or longer, as he may desire. I want it made possible for him to end his days, in his own home, and wish Mrs. Bell and attendants to keep him interested with games, and card playing if possible. His own income is first to be used for his support, and expenses, and after that the income I leave is for his use, outside of what I have bequeathed to a few persons. Should his own income, and that which I bequeath to him, not be sufficient to give him what he actually needs for himself, attendants and, certain luxuries, his own personal property should first be drawn upon, and if that is used up, the executors are requested to draw what is necessary from the principal of my estate. What I want is to have my husband made as comfortable as possible, with his own property, and all I leave behind me, which I bequeath for his personal use during his natural life. After my death, all the property, I possessed, or am in any way entitled, at such time, shall hereinafter be called, my said Trust Estate, and shall be held in trust, during the natural life, of my husband, Frederick Eugene Anthony, to be managed in the following manner, in con-, nection with what I have previously written. All income, exceeding, what is necessary for taxes, repairs, incidental expenses, and salary of the Trustees, to be credited to my estate, but to be used freely for the benefit of my said husband, whenever his own income, from the estate of the late Henry Anthony, does not prove at times sufficient, from any cause, but always, his own rightful income, is first to be expended, upon him, and then when necessary, falling back, upon the income accruing from my Trust Estate. I hereby now appoint the following parties, as my Executors, and Trustees of this my last Will and Testament namely: My cousin, George A. Perry, of Galesburg, Illinois; Mrs. Ora L. Bell, of Providence, State of Rhode Island, and my husband ’& nephew, William Richmond Tillinghast, also of said city and state, as joint tenants in trust, for them, and the sur *209 vivors of them, and other the trustees, under these trusts for any time being, all hereinafter called my said trustees, to take charge of, and manage the same. I also give the said George A. Perry, if he feels the position of Trustee, would conflict with other interests, and duties, of his own, power to place some one in this position, who would consider the Trusteeship, the same as George A. Perry will, if he accepts personally the position. The real estate must be kept in good tenantable repair, and the buildings thereon, for the time being, properly insured against loss by fire, and the personal estate kept invested either in the investments in which the same may be, at the time of my death, without being accountable for any resulting loss in so doing, or from time to time, to change the investments, or any reinvest-ments, of the same, as my said Trustees, shall deem best; and with power to my said Trustees at any time, or from time to time to build, or make other improvements, additions, or betterments, upon any part, or parts of the real estate in their discretion, but if this is done, it must be done by changes, not affecting the income from my estate, to be kept intact for the benefit of my said Husband; and also at any time, or from time to time for any of these purposes, or other purposes of the trusts of these presents, or for the payment of the foregoing legacies, or any or either of them, if they shall deem it wiser, so to do, than to sell the personal estate, therefor or for the purposes of reinvestment, to sell, mortgage, or pledge any of my said trust real estate (except my Mathewson Street Estate now leased for a long term of years, to the Lederer Realty Company, also my estate, cor. of Fountain and West Exchange streets, now leased to Mr. Isaac Hahn for a long term of years, unless all the reinvest-ments are to be for the direct benefit of my Husband, and if these should not prove sufficient, to assist in carrying out my wishes, he is to have the full benefit of the principal arising from the sale of any of my estate, real or personal), or any of said trust personal estate, and to enter into any contract in respect thereof. With power also at any time or *210 from time to time (providing all Trustees agree in writing) to lease any part or parts of the real estate, for fifteen years, or less, with the understanding that if the time comes to close the Trust, the Lessee, or Lessees, shall have one year to make other arrangements, before moving out of, or from location, if sold, and passed into other hands. And my said trustees shall receive, and collect all of the income of all my said trust estate, and shall pay therefrom all taxes, assessments, and other public rates, and charges, all expenses of insurance, and of ordinary repairs, and other expenses upon, or in respect of, or incident to my said estate, and the care thereof, and the execution of these trusts including their own reasonable compensation, and the residue of said income, before mentioned, and hereinafter called the said 'net income,’ shall until the conveyance, and transfer to my said Husband of parts, of said trust estate, as hereinafter authorized from time to time apply as follows, viz: First, to pay over to my said husband, for his own use, if he be able to care for, and use the same himself, otherwise to apply to his comfortable support and maintenance, in his own home, if possible, and if there is the slightest objection to his living in the house, now numbered 183 & 185 Adelaide Avenue, from any person or persons, the executors are to select three disinterested physicians, to examine into and decide the matter, with the understanding that proper care, and precautions are to be taken for the safety and comfort of my said Husband. If, however, he has to live elsewhere, he is to have the same use of the income mentioned, and for travelling expenses, if able to travel, with a competent and agreeable companion, and with suitable servants, to attend to him, and to properly care for his wants, at all times, an amount while received by him, equal at least to the net income, derived from my Adie Mansion Estate, and The Anthony Annex, on Westminster and Greene Streets, from my estate on Fountain and West Exchange Streets, now leased to Mr. Isaac Hahn, also my estate between Washington and Fountain Streets, on Mathewson & Clemence Streets, *211 now leased to The Lederer Realty Company, also all my property on Atwells Avenue, between Adié and Merrill Streets, and whatever benefit may accrue from the sale of the lots on Academy Avenue, on the Adie Anthony Park plat, and any other real estate now standing in my name, which I may not now have mentioned; also from all the ■stocks now standing in my name, as follows: United Traction, Boston and Albany Railroad Stock, Boston and Providence Railroad stock, Narragansett Electric Light Co., and others, which I hold, at the time of my death. Secondly: During the life of my said husband to pay to my cousin Henrietta W. Brown, during her life, an annuity of three hundred dollars, to be paid quarterly, from the date of my death. And all of the residue of said net income, to pay to my husband, for his own use, if he be able to care for, and use the same, if not, as I have said before, deposit it in the name of my trust estate, to be used for any necessity, or luxury, which may be for his comfort; And if at any time, the said net income of my said trust estate, shall not be sufficient for these purposes, or if the income aforesaid set apart for my said husband, shall not be sufficient for his uses as aforesaid, when added to his income from his late Father’s estate, then the deficiency thereof may, from time to time, be raised by sale, mortgage, or pledge of any part, or parts of my said trust estate personal or real, except the Mathewson Street estate, the estate corner Fountain, and West Exchange streets (they being already leased, at this time), for the direct benefit of my said husband. Provided, and I declare that it shall be lawful for my said trustees at any time, if in their, or his opinion, the health, and condition of my said husband will justify it, to convey, transfer and make over to him, in fee simple, for his own use, discharged of all trusts, the one fourth part of the sevéral stocks (the income from all my stocks, having been set apart for him, in case he was not in condition to look after his own property), and also my said Estate, corner of Fountain and West Exchange Streets, with any improvements, that may then be thereon, subject *212 however to any then existing lease thereof, but any other then existing incumbrance thereon, if any, to be in that event, paid out of my other estate, or if said stocks, or any of them, or said estate has theretofore been sold, then to pay to my said husband, from any other said estate, other than my said Adie Mansion, and the Anthony Annex estate, an amount equivalent, to the reinvested proceeds derived therefrom ; As my husband’s income from his Father Anthony A estate, is so connected with what he is to receive from mine, it may be necessary for the two disinterested Trustees, to inquire, the reason if my husband’s income from his Father’s estate, should be less, from time to time, as for some time, it has averaged two thousands of dollars per annum from the real estate. Should it be necessary for my Husband to continue to live at the Butler Hospital, I desire that my Trustees, will be sure that he has very comfortable rooms and accommodations, as good as the Hospital affords, and a carriage sent every suitable day for him to drive out, if he is willing, or desires to go. I also desire that one of the Trustees shall see him every month personally, and find out if possible, if he desires anything for himself, or anything done for him.”
There follow very explicit directions for the care of Frederick E. Anthony in Butler Hospital if he continues to stay there, and various legacies and bequests to take effect after her husband’s death, with specific gifts to William R. Tillinghast and various other relatives of Frederick E. Anthony. Also directions as to the care and sale of her property after his death.
The residuary gift is as follows: “Whatever may now be left of the so-called trust estate, I bequeath to the children, and grandchildren, of Maria and William Whipple Brown of Providence, State of Rhode Island, and Charlotte Perkins-Gilman, and daughter Catherine Stetson, to be equally divided, share and share alike.”
The will ends with the appointment of the executors, George A. Perry, Ora L. Bell and William Richmond Tilling- *213 hast. Various provisions of the will other than above which throw light on the construction of the residuary gift and of the gifts to Baynes will be referred to hereafter.
The evidence shows that Julia P. A. Anthony executed her will in 1905, and died in Providence, October 6, 1907. In 1905 Frederick E. Anthony was sixty-five years old and Mrs. Anthony about the same age, — he had then been an inmate of Butler Hospital nine years. The will shows that the testatrix knew of his condition, which was one of mental impairment, consisting of apathy, resistiveness and slight delusion. And she contemplated the possibility of his being obliged to remain at the Hospital indefinitely.
She expressed in her will, however, a desire that, upon her death, her husband move to her Adelaide Avenue residence, if possible, the question of the advisability of his so doing to be determined upon the advice of three disinterested physicians selected by the executors, (the will above quoted.) The executors selected three such physicians, who were unanimously of the opinion that it would be most unwise for Mr. Anthony to move from the Hospital. Accordingly, since 1896, Mr. Anthony has remained continually at the Hospital, where he is gradually growing worse. His condition is described as terminal dementia, with a decline of feeling, amounting to apathy; he has not the power of application to do anything, cannot be diverted, talks only in monosyllables, and does not even ask for food. His affairs are in the hands of his nephew, Charles F. Tillinghast, a brother of William R. Tillinghast. As the three experts consulted by the executors, and the assistant superintendent of Butler Hospital are all strongly of the opinion that Mr. Anthony will be better off at that Hospital than anywhere else, it seems certain that Mr. Anthony will never leave the Hospital. He was seventy years old October 18, 1910.
It also seems certain that Mr. Anthony never has been able since 1896 to take care either of himself or of his property, and that he is absolutely unfitted to take care of property or *214 the income thereof, or to spend it for his own maintenance and support.
This appears clearly in the testimony of Dr. Hall, the assistant superintendent of Butler Hospital, who has been conversant with the condition of Mr. Anthony ever since 1898.
Mrs. Anthony owned a large amount of property, both real and personal, that she managed herself, and after her husband was sent to Butler Hospital in 1896 she managed his property under a broad power of attorney. Up to the year 1902 she merely received his net income from the trustees of his father’s estate. In 1902 the personal property of the Henry Anthony estate was divided and Mr. Anthony’s share delivered to Mrs. Anthony. After that time she invested and reinvested this personal estate, keeping a strict account of both principal and income. It is to be noted in this connection that her account books show that Mrs. Anthony spent her husband’s own income solely for his support and comfort, never using any of it for her own support and maintenance. The only money of his that she used was money which she borrowed, using the same for making improvements upon her own real estate; and at the time of her death she owed her husband $10,348.83, for which she had made out her note. This represented principal and accumulated income of his estate borrowed by her from time to time. It is in evidence also, that she was careful to keep his expenses within his own income, and objected to paying Butler Hospital more than $50 per week for his care, on the ground that that was all his estate could afford to pay. At that time she asked William H. Tillinghast whether the trustees of the estate of Henry Anthony could contribute to her husband’s support out of the principal of the trust estate, and was disappointed because the principal could not be used. Before the death of the testatrix, Mr. Anthony had no private nurse, and paid the Hospital fifty dollars a week. This arrangement continued for nearly three years after her death. In 1910 he was moved to a better suite, and has *215 since had a special nurse. The change was necessitated by Mr. Anthony’s more enfeebled condition. Since 1910 the Hospital has charged Mr. Anthony one hundred dollars a week, but his other expenses are nominal, being only for clothing, carriage hire and the few such other comforts which he is able to enjoy. The entire cost of supporting him as comfortably as possible is about six thousand dollars a year. The net income of Mrs. Anthony in recent years was about twelve thousand dollars per year, and Mr. Anthony’s own annual net income, outside whatever he is entitled to under the will in question, has been since 1896 approximately thirty-eight hundred dollars. Consequently an annual surplus income of about $8,800 is being accumulated.
It appears from the bill and answers that the children of Maria and William Whipple Brown, all first cousins of testatrix, living at the death of the testatrix were as follows: Elizabeth Whipple Brown, Henrietta Whitman Brown, Julia Adie Jastram, Maria Perkins Brown, Robert Perkins Brown, and Almira Adie Elder. At that time two of the children of Maria and William Whipple Brown had died, namely, Edward Whipple Brown and Reginald C. Brown. Edward Whipple Brown was not married.
The grandchildren of Maria and William Whipple Brown, living at the death of the testatrix were Bessie Y. Polleys, Ethel Abbe, May Field Brown and Gertrude Perkins Brown, all children of said Reginald C. Brown, deceased; Edward Perkins Jastram and Julia Adie Whittaker, children of said Julia Adie Jastram; Madelaine Ray Brown and Robert Perkins Brown, Jr., children of said Robert Perkins Brown; and Marion Perkins Elder, Christine Pearce Elder and Majorie Powell Elder, children of said Almira Adie Elder.
Since the death of the testatrix, Bessie V. Polleys has died, leaving surviving her, her husband, William Y. Polleys, and two minor children, namely, William Polleys and Elizabeth Polleys.
No other children or grandchildren of Maria and William Whipple Brown have died, and none have been born since *216 the death of the testatrix. Both Maria and William Whipple Brown are dead; Charlotte Perkins Gilman and Katherine Stetson are both alive. At the death of the testatrix there were living seventeen children and grandchildren of Maria and William Whipple Brown, and also Charlotte Perkins Gilman and Catherine Stetson.
The executors and trustees under the will, in their prayers for instructions, submit the following questions to the court:
1. Whether the whole net income of said trust estate belongs to the said Frederick E. Anthony, or only so much thereof as shall be needed for his support and comfort?
2. Whether, if the whole net income does not belong to the said Frederick E. Anthony, the surplus income shall be accumulated during his life to be paid over with the principal to those entitled upon his death to said principal, or can be divided and paid over from time to time during the life of said Frederick, and if it may be so paid, to whom it may be so paid and in what proportions?
3. Whether the children, and grandchildren of William Whipple Brown living at the time of the decease of said testatrix took vested or contingent interests under her said will and if any of them are in any way entitled to any part of the income of the trust estate, to whom will the share or income be payable in case of the death of any one of them during the life of the said Frederick E. Anthony?
4. Whether Matthew Baynes is entitled under the circumstances to the monthly wages named in the will since July 1st, 1908, together with any payments in lieu of his board and lodging; and whether he is entitled either to the legacy of two thousand dollars payable to him in case he remained in the service of Frederick E. Anthony during his life, and if entitled, at what time he is entitled thereto; and if he is not entitled to said legacy whether he is now entitled to the legacy of five hundred dollars to be paid to him in case he left the employment of Frederick E. Anthony; and whether the two legacies of two thousand dollars each to the said Baynes, one named in the early part of the will *217 •conditional upon his remaining in the services of said Frederick during his life, and the other toward the end of the will •as payable on the death of said Frederick are both to be paid, or whether they are intended to be or are in legal contemplation one and the same legacy; and whether either or both of said legacies are payable only upon condition that said Baynes survives the said Frederick?
In answer to the first question above quoted, we are-therefore of the opinion that the whole net income of said trust estate does not belong to said Frederick E. Anthony, but only so much thereof as shall be needed for his support and comfort, after the income from his own property has; been used.
Other courts have construed similar wills in the manner-herein adopted, holding that where a testator in one part, of will gives a particular estate and in subsequent passages, shows that he means the legatee to take a lesser interest *220 ■only, the prior gift is restricted accordingly. Such subsequent provisions will not take from an estate given qualities that the law regards as inseparable from it, but they are ■operative to define the interest given. The fact that there is no limitation over is immaterial.
A case somewhat similar to that at bar is Bundy v. Bundy, 38 N. Y. 410. There a will provided: “I give and devise unto my wife, Clarissa M. Bundy, and Ellen R. Bundy, . . . all my real and personal estate, property, assets and •effects, subject to my debts. I also further will and direct, 'that in case either the said Clarissa M. should die without heirs, or that the said Ellen R. should die without heirs, •that the proceeds invested for either so dying, after sale ■of my said property, should be equally distributed among the heirs-at-law of my mother.
“And I further will and direct, that my executors, hereinafter to be named, sell and convey my real estate, and convert my personal property into cash; also that the said •executors invest the proceeds of the sale of both my real .and personal property, in bond and mortgage, or other good securities. I also will and direct, that the said Clarissa M. and the said Ellen R. use respectively so much, or enjoy the use of so much, of the interest arising out of the said bonds and mortgages, or said other securities, or both, as •shall be necessary and proper for their maintenance and support; and that, if the interest be not sufficient for such maintenance and support, then they, or either of them, shall receive funds for such support from the principal so invested.”
The court held that Clarissa was entitled only to an .amount sufficient to support her during life.
In re Shower’s Estate, 211 Pa. St. 297, a will provided:
“After the death of my wife, Elizabeth, I direct all my estate then remaining to be divided equally between all my children, :share and share alike; the trustee or trustees appointed as ‘before provided to receive in trust for my son Frederick and ■daughters Sarah and Clara before named the share to which *221 each may be entitled respectively” and then this was made-subject to certain restrictions. The court held that the children were entitled only to equitable life estates subject to the restrictions, and said (pp. 302, 303): “It is settled by our cases that an estate of inheritance in real estate or an absolute interest in personalty given in a will may be reducecL to a lesser estate if the subsequent language of the instrument, unequivocally shows that such was the intention of the testator. ‘No principle is better settled/ says Strong, J., in Sheets’ Estate, 52 Pa. 257, ‘than that, if a testator in one part of his will give to a person an estate of inheritance of land, or an absolute interest in personalty, and in subsequent passages unequivocally shows that he means the-devisee or legatee to take a lesser interest only, the prior-gift is restricted accordingly. Subsequent provisions will not avail to take from an estate previously given qualities, that the law regards as inseparable from it, as, for example, alienability; but they are operative to define the estate given, and so show that what without them might be a fee,, was intended to be a lesser right.’ This language is quoted with approval in Snyder’s Appeal, 95 Pa. 174; Good v. Fichthorn, 144 Pa. 287, and Krebs’ Estate, 184 Pa. 222. . . . Nor is the fact that there is no limitation over of the principal sufficient to control the quantum of the estate in the cestuis que trust.
Haring v. Shelton, 114 S. W. 389 (Tex. 1908). Here a will provided: “I give and devise unto my beloved wife, C. C. Shelton, her heirs and assigns forever, the following described .tracts or parcels of land . . . and it is my will that my said wife, C. C. Shelton, and her heirs shall hold said lands in fee simple forever, or so long as she shall remain a widow.” Although there was no gift over, the court held that the heirs of the testator could recover the land from C. C. Shelton’s grantee, and said (p. 391): “Here the limitation of the estate to the widowhood of Mrs. Shelton is contained in the very terms of the devise and the intention of the testator is unmistakable. It is conceivable that the *222 testator, having it in mind to limit the estate devised to his wife to her widowhood, may have used the language importing, taken by itself, an intention to make an absolute gift, without clearly understanding the import of such language, as repugnant to the limitation; but it is not reasonably conceivable that he would have used, in this very connection, the language ‘or so long as she shall remain a widow/ without having the specific intention to vest an estate determinable upon his widow contracting a second marriage. It is true there is no devise over, but that does not destroy the limitation, but leaves the remainder to descend as in case of intestacy. It being clear that the testator did not use the words, ‘so long as she shall remain a widow, ’ without a full understanding of their import, and that they express his intention, we do not think that intention should be defeated by the application of any technical rules of construction.”
Dulin v. Moore, 96 Tex. 135 (1902). In a will were the following clauses:
“Item 2d. To the children of my son, A. B. Moore, he being dead, I give and devise” certain real estate. . . .
“Item 9th. I hereby appoint R. R. Dulin of Sherman, Texas, trustee to receive and control the property bequeathed and devised to the children of A. B. Moore. . . .
“Item 10th. I hereby direct and empower the said trustees to keep possession and control of the property bequeathed and devised to their said beneficiaries during the lives of said beneficiaries. Said trustees are not authorized to dispose of any of the body of said property, but are expressly prohibited from so doing, except for the purpose of reinvesting, which last they may do at their discretion. Said trustees are authorized and empowered and directed to expend the rents, interests and profits arising from said property in furnishing the said beneficiaries with necessaries and such other things as may be suitable for the respective beneficiaries, according to their stations in life.”
On a suit to construe the will, the court held that Items 9th and 10th ought not to be rejected as repugnant to Item *223 2d, but with them operated to give the legal estate to the trustee and that Moore’s children took only a beneficial interest. The court said (pp. 138, 139): "In this case we must construe clauses 2 and 7 of the will in question in connection with clauses 9 and 10. The language of the two former, if unaffected by the latter two, would by virtue of the operation of our statute have conveyed to the devisees therein a fee simple title to the property. . . . The intention of the testatrix must be given effect, unless prohibited by law. That the provisions in clause 10 do not contravene any rule of law we think clear.”
See, also, Taggart v. Murray, 53 N. Y. 233 (1873); In re Boulevard from Second St. to Rhawn St., 79 Atl. 716 (Pa. 1911).
■ Counsel for Mr. Anthony contend that “there nowhere appears any direct reference to any surplus of income and there is no direction for the accumulation of the surplus for the benefit of the remaindermen,” and that there is no ground for implying such a direction. It is true that nowhere has the testatrix used the word "accumulate” or “accumulation.” But she gave the following directions: "All income, exceeding what is necessary for taxes, repairs, incidental expenses, and salary of the Trustees to be credited to my estate, but to be used freely for the benefit of my said Husband, whenever Ms own income, from the estate of the late Henry Anthony, does not prove at times sufficient, from any *224 cause, but always, his own rightful income, is first to be-expended, upon him, and then when necessary falling back, upon the income accruing from my Trust Estate.” It is. our opinion that this direction to “credit” the income to her estate amounts to a direction to accumulate it, and the testatrix, by providing that the trustees may “fall back” upon it. shows an intention to treat the surplus income accruing as. principal. The same idea is expressed in the following direction to “deposit” the income: “And all of the residue of the net income, to pay to my husband, for his own use, if he be able to care for, and use the same, if not, as I have said before, deposit it in the name of my trust estate, to be used for any necessity, or luxury, which may be for his comfort.”' It may be that the vocabulary of the testatrix did not contain the technical term “accumulate,” and so to express her desire to convert the income into capital she used the words which her business experience rendered familiar to her, “credit” and “deposit.” And that the accumulation was to be for the benefit of the residuary legatees is made clear by the residuary clause which disposes of “whatever may now be left of the so-called Trust Estate,” previous provisions having carefully defined the “so called Trust Estate” and directed that the income accruing from it should be made a part of it.
The authorities treat such expressions as directions to* accumulate. The law is summarized in 22 Am. & Eng. Ency. of Law, 2nd Ed. 728: “In any case where it is made the. duty of the trustee to treat as principal the income of the trust property, instead of distributing it in the ordinary course, there is an accumulation.”
In Matter of Estate of Fisher, 4 Misc. (N. Y.) 46, a will directed the trustee under it to pay off a mortgage from the income of the estate. The court held that this in effect directed an accumulation (which was void under a statute) and said of the income (p. 47): “It goes into and forms part of such estate and increases the capital, the income of which is; distributable under the trusts in the will, and the augmented *225 principal ultimately. The provision is, in effect, precisely the same as if the testator had, in so many words, required the trustee to apply the income to swell the principal of the trust fund.”
In 22 Am. & Eng. Ency. of Law, 2nd Ed. 729, it is said:
“A direction to accumulate need not be express; it may be implied from the terms of a will or deed, as where the instrument disposes of an estate in such a manner that an excess above what is reasonably necessary to carry out the trust necessarily accumulates.”
Such was the holding in Eberly’s Appeal, 110 Pa. St. 95, in which the court (p. 98) used language almost identical with the above. The following are among other cases which recognize and apply this principle: M’Donald v. Bryce, 2 Keen, 276, Penrose’s Appeal, 102 Pa. St. 448, Scott v. West, 63 Wis. 529 (see pp. 573, 574).
For the reasons above given we do not find in the present case any reason for ordering any distribution of the accumulated income prior to Mr. Anthony’s decease.
The rule laid down by this court in Greene v. Rathbun, 32 R. I. 145, 156-7, is entirely applicable to the question now under discussion, both as to the vested interests of the said children and grandchildren, and of said Charlotte Perkins Gilman and Catherine Stetson; and also as to the interests of said Bessie V. Polleys and her husband and children.
It is also to be observed that the rule in Greene v. Rathbun, supra, involves the further finding that the remainder vested in these children and grandchildren, is subject to open and let in any grandchildren who may be born after the death of the testatrix, and before the death of Frederick E. Anthony, at which time the estate will vest in possession and be distributed (see p. 157). This furnishes an additional reason, if any were needed, why none of the income of the estate should be distributed during the fife of Mr. Anthony, because there can be no legal certainty that other grandchildren will not be born during his life, and thereby become entitled to share in the distribution of the residuary estate.
It is also clear that, under the terms of the residuary *228 clause, the said children and grandchildren take per capita with Charlotte Perkins Gilman and Catherine Stetson and with each other. In the absence of expressions of a contrary-intention, a gift to “A and the children and grandchildren of B” gives each child and grandchild a share equal to A’s and to that of each other child and of each other grandchild. In Guild v. Allen, 28 R. I. 430, 436 (1907), Mr. Justice Johnson said: “In general, where a gift is to the children of several persons and the children of another person, they take • per capita and not per stirpes.” See, also, Schouler, Wills, 2d Ed. Sec. 540; 2 Jarman, Wills, 5 Amer. Ed. 756, and cases cited. Moreover, the words “to be equally divided, share and share alike,” show unmistakably that this was the intention of the testatrix.
The clause in question reads: "If Matthew Baynes should be in my employ, and wish to continue, he is to be retained at forty dollars each month, and his room and board.” It is-inserted in the midst of minute directions for the care of Mr. Anthony, all of which rest on the condition that Mr. Anthony should be able to occupy the Adelaide Avenue house. The very work for which this is to be given to Baynes is care of this house, "inside and out, as he has been accustomed to do, and also give some attention to Mr. Anthony, if the latter should need it at times.” In another part of the will, the testatrix makes directions for the care of her husband in event of his not living in the Adelaide Avenue house, and in this part there is no provision whatever for Baynes. An absolute legacy of $1,000 is given Baynes in the first part of the will, and another legacy of $2,000 is given him in a clause near the last part of the will referred to hereafter. In the light of these circumstances, it is clear that the clause under discussion' was intended not primarily as a gratuity to Baynes, but rather as a provision for the support of Mr Anthony in a contingency which has not occurred.
The executors have paid Baynes the legacy of $1,000 provided for in the early part of the will. As Mr. Anthony could not live in the Adelaide Avenue house, the executors closed it, after giving Baynes one month’s notice that they should not require his services there after July 1, 1908, and paying him his stipulated compensation of $40 a month to that date. As the testatrix died October 6, 1907, Baynes *230 received in all payment for about nine months’ service at the rate directed in the will. As he cannot render further services, even though it is through no fault of his own, he is obviously not entitled to any further payment. A similar question came before the court in In re Dempsey, 25 N. Y. Misc. 257 (1898).
There a testator made a gift to a charity, for the support and maintenance of his wife, the charity to retain any balance for its own benefit. The wife died before the testator, and the court held that as the gift was made for a service which the charity was prevented by circumstances from performing, it could not get the gift.
Baynes is not and never will be entitled to anything under the clause, “Should Matthew Baynes, not be satisfied after giving it a fair trial, he is to receive on leaving five hundred dollars with his wages, but should he remain with Mr. Anthony during his life, he is then to have two thousand (2,000) dollars, for his faithful services to us both.”
The testatrix evidently contemplated the possibility of Baynes ’ being dissatisfied with working for a person of Mr. Anthony’s peculiarities, but wished to give him every incentive to stay with Mr. Anthony, and so carefully provided to reward him “for giving it a fair trial,” making dissatisfaction after a fair trial a condition precedent. This contingency has not occurred — Baynes was not shown to have been dissatisfied, but circumstances did not allow him to “give it a fair trial.”
The gift of $2,000 is conditioned in unambiguous terms on Baynes’ remaining with Mr. Anthony during his life, and this contingency cannot happen.
Priestley v. Holgate, 3 K. & J. 286 (1857). The will provided: “Whereas . . . James Priestly” “has emi *231 grated to Australia, I give . . . him, in case he remains in Australia or out of this kingdom, 600 1; to be paid to him twelve months after the decease of my wife; but if he return to England before her decease, I give and bequeath to him the further sum of 400 1.” Several years before the death of the widow, Priestly took passage on a boat for England, with intention of returning, but was drowned, with all on board. The court refused to allow the additional £400 to his representative.
Higgins v. Eaton, 178 Fed. 153 (1910). Here a legacy of $100 a month was left to a sister, provided that she cared for a mute brother during his lifetime. The brother, however, lived elsewhere; and the court, saying that it was immaterial that the sister was willing to care for the mute, held that she was not entitled to the legacy.
Colvin v. Pairpont, 9 Ky. L. Rep. 191 (1887). The complainant’s bill alleged that the testatrix left $200 to him in case he should live with and care for her as he was then doing until her death; that he lived with and cared for her for several years, until she ceased to have a house and gave him no place where he could stay with her. The court sustained a demurrer to the bill.
Fisher v. Fisher, 113 N. W. 1004 (Neb. 1907). A testator contemplating his future inability to look out for himself, provided that if his son should care for and support him during the remainder of his life, he should have a certain piece of land. The son thereafter gave his father whatever care he required and rendered many personal services, but, owing to a change in circumstances, his father required him to support him financially only to a small extent. The court held that the son was not entitled to the land.
■ Stark v. Conde, 76 N. W. 600 (Wis. 1898). The will provided, “If at that time (when nephew attains the age of 30 years) said trustee deems my said nephew competent to care for. . . . the said sum of $10,000, ... he shall then pay over to my said nephew . . . said sum.” The nephew attained the age of thirty about a year before the *232 death, of the testator; and the court held that as there consequently was no trustee at that time, the nephew could in no way get the legacy.
See, also, Jarman, Wills, 5 Am. Ed. 520; 1 Underhill, Wills, 648; Schouler, Wills, 2d ed. Sec. 599.
Having now answered all of the questions above set forth, the parties may present a decree for the approval of the «court, in accordance with this opinion.
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83 A. 8, 34 R.I. 203, 1912 R.I. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-brown-ri-1912.