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Certified from Superior Court, Providence, his wife guardian of his daughter. The and Bristol Counties.

rest and remainder of his estate, both real Suit by Charles T. Dorrance and others, and personal, he directed to be sold, and as trustees pro tempore under the will of the proceeds to be paid over to three trusSamuel Larned, deceased, against W. Max tees, to whom he gave and bequeathed said well Greene, as administrator of Celia Larn- proceeds in trust. The trustees were given ed Greene, deceased, and others. Case certi. power to invest in Rhode Island real estate, fied to the Supreme Court. Decree ordered real estate mortgages and bank stock, and submitted.

to change investments from time to time Elisha C. Mowry, of Providence, for com

in their discretion. They were directed to plainants. Frank W. Hackett, of Washing

make payment from the trust funds (1) of ton, D. C., and Mendell W. Crane, of Prov.

the annuities thereinbefore bequeathed; (2) idence, for Laura L. Sayles. Walter A.

of various annual sums for the testator's Edwards, Eliot G. Parkhurst, and Edwards

daughter, Katharine Celia Larned, the & Angell, all of Providence, Richard W. Hale

amount thereof being gradually increased and George A. Moriarty, Jr., both of Boston,

for a certain period until it reached a maxMass., and Greenough, Easton & Cross and

imum of $1,200 each year, said amount unFrank T. Easton, all of Providence, for va

til her marriage to be paid annually to her rious respondents.

guardian during her minority and to her

upon reaching her majority; (3) to the BishBAKER, J. This cause is a suit in equi- op of the Diocese of Rhode Island, for rety, brought by the complainants in their ca. ligious purposes, all surplus income not repacity as trustees for the time being un- quired for the foregoing payments until an der the will of Samuel Larned, late of Prov. | aggregate sum of $4,050 had been so paid; idence, for instructions relating to the (4) thereafter to invest any surplus income construction of said will. The complain- for the purposes of the trust; and (5) to pay ants are also interested in the questions to the testator's said daughter from and raised in their capacities as executors of after her marriage during her life the whole the will of Katharine Celia (Larned) of the income of the trust fund remaining Greene, the testator's daughter, and as after the foregoing payments. Then appear trustees under certain clauses of her will, the provisions of the will which have given and the complainant W. Maxwell Greene is rise to the questions now before the court, also interested as administrator of the es- as follows: tate of Celia (Larned) Greene, the testator's | “And from and after the decease of my said widow, who remarried subsequent to his de- daughter should she leave a child or children, cease. Accordingly, in these capacities they

the said trustees shall appropriate so much of

the income of the said trust funds as may be bave, with numerous other parties, been

necessary for the support of such child or chil. joined as defendants.

dren until the youngest of them shall attain The case, being ready for hearing for the age of twenty-one years, or otherwise become final decree, has been certified to this court

of age at which time they shall terminate their

said trust by conveying to the child or children for final determination under General Laws of my said daughter their heirs and assigns in 1909, c. 289, 8 35, upon bill, answers and equal shares all the estate real and personal then proof, the bill having been taken as con

holden by them in trust.

"But if my said daughter shall decease withfessed against such parties as failed to an

out leaving any child or children living at the swer.

time of her decease, I then direct that the said The important facts disclosed by the evi- | trustees shall thereafter pay to my wife for her dence may be thus summarized: Samuel

one own use, if she has remained unmarried the an

nual sum of five hundred dollars so long as she Larned died in December, 1846, leaving him

remains unmarried-And shall also immediately surviving his widow, Celia Greene Larned, thereafter pay the following sums to the persons and a daughter, Katharine Celia Larned. hereafter named that is to say: He was the son of William Larned, and had

"My mother Mrs. Sarah Larned two hundred

dollars. 16 (or perhaps 18) brothers and sisters, "My brother William G. Larned one hundred whose numerous descendants, so far as dollars. known, are among the parties respondent.

"My brother George Larned one thousand dol

lars. His will, dated November 28, 1846, about a

“My sister Sarah S. Larned two hundred dolmonth before his death, was admitted to probate in the municipal court of the city "My sisters Laura S. Hallett and Abby S. of Providence on January 26, 1847. His

Brown two hundred dollars each.

"My nephew William Larned two hundred dolfirst provision was for his wife, to whom lars." he gave $ 12,000 outright "in lieu of her "My nephew Russell M. Larned five hundred dower or other interest in my real or per

me dollars. sonal estate." He also gave her two gifts

"My nephew Edwin C. Larned one thousand

dollars. not of a pecuniary nature. He then dis "My nephew Charles H. Larned or L'arnard posed of his household furnishings, made nu- fifty dollars. merous small pecuniary gifts to relatives,

"My nephew William Henry Larned five hun

i dred dollars. friends, and servants, provided for several

"My nieces Elizabeth H. Coburn and Sarah


"My nephew Henry L. Hallett two hundred, other provisions and directions of the will dollars.

have been fully carried out, except those re“My niece Jane H. Sayles fifty dollars. “My brother-in-law Benjamin F. Hallett fifty

lating to the payments and distribution to dollars.

be made after the decease of said Katharine "My brother-in-law William Brown fifty dol-Celia (Larned) Greene, leaving no living lars.

child or children. The trust estate, consist"They shall also pay to some suitable person

ing principally of personal property, is now the sum of two thousand dollars as trustee for the sole use and benefit of my sister Sophia L. Clifford so that she shall receive the income The complainants seek instructions with thereof during her life, and so much of the

respect to four questions as follows: (1) principal from time to time as may be necessary for her support, with the right of disposing of the

Whether or not the 17 pecuniary legacies beprincipal or what may remain of it at her de- queathed in and by said will in case the said cease.

Katharine Celia (Larned) Greene deceased “They shall also pay to each of my nieces Lu

without leaving any child or children living cinda M. Larned, Mary Letitia Larned, Ellen G. Larned and Anne M. Larned the annual sum of at the time of her decease have, by reason thirty dollars so long as they respectively remain of the decease of the legatees during the unmarried-and also to my nephew Samuel lifetime of the said Katharine, lapsed; (2) Larned the annual sum of thirty dollars for the

whether the legacy in trust for the use and term of ten years.

“And all the rest and residue of the said trust i benefit of Sophia L. Clifford bequeathed in funds, remaining after the payment of the said and by said will in case the said Katharine sums, and reserving a sufficiency for the payment

Celia (Larned) Greene deceased without leavof the annuities provided for in this my will, they shall distribute to and among my heirs at ing any child or children living at her de law, in the proportions in which they would sev- cease and the said 17 pecuniary legacies, if erally be entitled under the statute for the dis- they shall be deemed to have lapsed, have tribution of intestate estates.

"And whenever the payment of the said annui- fallen into the residue of said trust estate: ties shall cease so much of my said estate, as and, if they have not fallen into said resimay have been reserved for their payment shall due, what disposition should be made of be then distributed in like manner.”

them; (3) whether the phrase "heirs at law" The testator was survived by his wife, | of said Samuel Larned in the provision in Celia Greene Larned, and his only child, said will for the distribution of the trust esKatharine Celia Larned, no other person attate in case the said Katharine Celia (Larnthe date of his decease holding the capacity

ed) Greene deceased without leaving any of his heir at law or next of kin. The tes- child or children living at the time of her tator's widow subsequently married Richard decease has reference to the persons holding W. Greene, who predeceased her, and she said capacity at the date of the death of the died intestate in 1887, leaving her daughter said Samuel Larned, or to the persons who Katharine Celia as her sole heir at law and would have held said capacity had the said next of kin. Said Katharine Celia Larned Samuel Larned deceased immediately after married the defendant W. Maxwell Greene the death of the said Katharine on the 29th in 1872, and died June 29, 1917, testate and

day of June, 1917; and (4) whether or not, without ever having had any issue. In her

| if the residue of said trust estate is distribwill she directed that all property of hers

utable among two or more persons at the derived from the testator be kept separate

present time, the complainants, as such trusand disposed of it in part for the benefit of

tees, have for the purpose of making discertain charities and in part for the benefit

tribution of the same power to sell real es. of various members of the Larned family, in

tate not capable of being partitioned in kind, cluding many of the parties to this suit.

and power to sell such securities as remain All of the persons, including the legatees

after their holdings as such trustees in each of the said 17 pecuniary legacies and said

security, so held by them, have, so far as Sophia L. Clifford, for whom special provision

possible, been distributed in kind in equal was made by the testator in case his daugh

portions among the persons entitled to said ter Katharine should decease without leav

residue. ing living children, survived the testator, but

[1] Question 3 is undoubtedly the most impredeceased said Katharine, Sophia L. Clif

portant one in the present case, and thereford dying intestate and without ever having

no fore it has been given the prominent position attempted to exercise the power of disposing

in the discussion by all of the parties in inof the fund which would have been available

terest. The executors of the will of Kathfor her were she now living.

arine Celia Greene, the administrator of the The various gifts made by said will prior estate of Celia (Larned) Greene, who is also to the creation of the trusts were paid by on of said executors, and one other respondthe executors, the persons to whom were ent claim that the words "heirs at law," as bequeathed annuities upon the death of the used in the will of Samuel Larned relative to testator survived the testator and predeceas the distribution of the rest and residue of ed his daughter, and said annuities were his trust estate, refer to persons having that paid in full. The payments required to be capacity at the date of his decease in 1846. made by the trustees to the Bishop of the All the other respondents, who have appearpersons having that capacity at the date of port of his daughter before her marriage and his daughter's decease in 1917. Broadly the payment of a few small annuities, after speaking, the controversy is between the rep- the bequest to the Diocesan Convention was resentatives of the deceased daughter of the paid, was added to the principal until the testator and the descendants of the testator's daughter's marriage in 1872. brothers and sisters. Under the well-estab-) In these circumstances the testator made lished rules of construction the word “heirs" his will. He first gave to his wife $12,000 is held to refer to the living person or per- | “in lieu of dower or other interest in my real sons holding that relation at the time of the or personal estate.". Then he created a trust testator's death, in the absence of an inten- estate, and provided that part of the income tion to the contrary clearly evidenced in the thereof should be used for the benefit of his will itself. The question presented, there daughter, and all of it after marriage during fore, is, Does the will itself clearly reveal her life, and, in the event that she leave chilsuch contrary intention? To satisfactorily dren surviving her, provided for their supanswer this inquiry it is desirable to consid- port from the incoine until the youngest of er the situation and circumstances as they them attained the age of 21 years, and then are disclosed to us, in which the testator ex- terminated the trust by giving the entire trust ecuted his will within a month of his death. fund to such children. But if the daughter At that time his infant daughter was not died without leaving any living child, which quite a year old. In case she survived him, has happened, he provided for the payment she would be his sole heir, speaking with annually to his wife of $500 “if she has retechnical strictness, while she and her moth- mained unmarried,” and “so long as she reer would be the only persons, in the event of mains unmarried," provided also for the pay. his decease intestate, entitled to share in his ment of 17 pecuniary legacies, amounting in estate under the statute of distributions. | all to $4,600, and for a few small annuities, We think it may be assumed that he knew and then directed that: this. His other family relatives then living

| "All the rest and residue of the said trust

. were his mother, brothers and sisters, and funds, remaining after the payment of said nephews and nieces. There is nothing in the sums, and reserving a sufficiency for the pay

I ment of the annuities provided for in this my will or otherwise to suggest that he then ex

will, they shall distribute to and among my pected to have other children. His wife was heirs at law, in the proportions in which they a young woman, at the time not much more would severally be entitled under the statutes than half his age, and the will itself contains for the distribution of intestate estates." evidence that he deemed her marrying again In view of these provisions, did the testaafter his death as not an improbable event. tor intend, in the event that his daughter It is reasonably clear that the early death of should die childless, that his widow, if she his daughter was in his mind as a possibill- survived her, whether she remained unmarty, if not as a probability, the evidence of ried or not, should receive the entire residue which is the giving upon her decease a pe- of the trust estate, or do these provisions incuniary legacy to his mother. The testator dicate a clear intent to the contrary? In was 58 years of age when his will was ex- | Welch v. Howard, 227 Mass. 242, 116 N. E. ecuted. Exhibit B, Table of Descendants of 492, a testator gave all the rest and residue William Larned. Table I, attached to the of his property and estate to trustees, with bill of complaint, shows that he was the directions to dispose of the net income "so third child born of his mother. It is rea- long as my said wife shall live and remain sonable to infer that when the will was made my widow, or either of my four children she was upwards of 80 years old, with of hereinafter named shall live, as follows," necessity an expectation of life of very few namely, after paying stated amounts annualyears. The amount of property disposed of ly to a brother and a nephew during their by the will is not definitely shown, but it respective lives to divide “the residue of said seems fairly apparent that it was not a very net income" among his said wife and his large estate even for that period. Kath- four children, "so long as my said wife shall arine Celia (Larned) Greene in her will at live and remain my widow and all my said tempts to dispose of the trust fund as a children shall live, equally, share and share fund separate and apart from her estate de alike." There are further provisions: First, rived from other sources. She gives from it that when his wife shall die or be married, in the form of specific legacies in all $63,000, her share of said income is to be divided and in addition there is a residuary clause among his said children, or the survivors of in favor of a person to whom she had given them, letting in the issue of a deceased child from this fund a pecuniary legacy as large by right of representation; and, second, that a3 that given to any other person. This af- if a child die leaving no issue surviving, his fords some indication of its present condi- share of the income is to be paid “to my said tion, and probably it is considerably larger wife, if living and unmarried" and the surnow than originally, inasmuch as, apart froin vivors of said children and the issue of a any possible increase by judicious manage deceased child by representation, and "upon ment by the terms of the will the surplus in the decease or marriage of my said wife and four children, my trustees shall divide and directing his mind to the death of his daugh. distribute all said trust property and estate ter at some time in the future, near or reamong my heirs at law, according to the stat-mote as the case might be, and to such disutes which shall then be in force in said com-tribution among those who would then be his monwealth, regulating the distribution of in- heirs, his mother, if the occasion be not far testate estates," adding a clause saving the away, his brothers and sisters, and the de rights of said brother and nephew as annui scendants of those who may have died. Contants. The court stated the question present struing the will thus, the "heirs at law" are ed to be whether the heirs were to be taken to be determined at the date of the death of as of the death of the testator in 1871, or as the daughter. of the death of the survivor of the life ten- The giving of the pecuniary legacies to ants in 1916. A second question was in the some of the persons who would in all probevent that heirs at the death of the testator ability be distributees of the fund, if worthy were meant, whether they were to be ascer- of note, will perhaps be sufficiently explained tained by the statutes then in force or by the if they are regarded simply as intended as statutes in force in 1916. The court held personal gifts and tokens of personal rethat the words "statutes which shall then be gard. in force" clearly indicated that the heirs It is not so easy to understand why he were to be determined as of the death of the should direct the payment of $2,000 "to surviving life tenant, but added:

some suitable person" in trust for the sole "If such interpretation be not required by the use and benefit of his sister Sophia L. Clif. construction of the precise language of this ford when she would also be a distributee will * * * ample and plain reason therefor of the rest of the trust fund. It is at least arises from the fact that the expressed intent,

conceivable that there was a reason satisthat the interest of the widow in the estate should determine absolutely on remarriage,

factory to the testator for the provision would be defeated if the remainder was con- without its being inconsistent in any way strued to be vested in the heirs at law at the

with making her a beneficiary in her own death of the testator, or in the heirs at law of the testator at the death of the testator as de

right otherwise. The successive distributions termined by the statute in force in 1916. of portions of the fund on the termination * . The provision relating to the disposi- of the annuities would not necessitate the tion of the income upon the death or remarriage l ascertainment of a new group of heirs. as of the wife discloses a clear intention to exclude the widow from any interest in principal the heirs would once be determined as of the or income on the happening of either event." date of the death of the daughter. Their

right to a share of the fund retained to supIn the present case the provision for the

port the annuities would vest in ownership annual payment to his wife of $500 from the

on the daughter's death, but not in possession rest and residue of the trust estate which

until the annuities were at an end. was to come into effect after the daughter's

This case is readily distinguished from death only if the wife had remained unmar

Kenyon, Petitioner, 17 R. I. 149, 20 Atl. 294, ried, and was to at once cease on her remar

as the court in that case largely rests its riage, when considered in connection with the

decision on the use of the words "I give and original bequest to her as being "in lieu of

bequeath" in the Kenyon will as importing her dower or other interest in my real or

| "a benefit in point of right, to take effect uppersonal estate" evinces, we think, a clear

on the decease of the testator and the proof intention that she is not to share in the dis

of his will." Those words are lacking in tribution of “the rest and residue of the

the present case. Comment on the several trust funds remaining after the payment of

Rhode Island cases in which has been found the" pecuniary legacies already mentioned,

oned; clear evidence of an intent to give the word "and reserving a sufficiency for the payment “heirs" a meaning different from its strict of the annuities" of which hers was one if | technical sense does not seem necessary, as she did not remarry. And if the testator in- they have been considered somewhat recently tended to exclude his wife as a distributee of in the case of Taber v. Talcott, 40 R. I. 338, his trust estate, it seems obvious that he did 101 Atl. 2. not mean, in directing the distribution to and The statute for the distribution of the among his heirs at law, that the law was to personal estate of intestates was the same take its course, as is stated in a number of in 1846 as in 1917. After a specified part the cases cited in the brief of the executors thereof is given to the widow, the statute of the will of Katharine Celia (Larned) I provides that: Greene.

"The residue shall be distributed amongst the [2] With this situation in mind, namely, heirs of the intestate, in the same manner real the death of his daughter without leaving a estates descend and pass." living child, and his wife excluded from shar- In other words, the same persons, who as ing in the distribution of the residue of the heirs take real estate, take "the residue" of trust estate, it seems reasonably plain that the personal estate as persona designata. the testator, in providing as to this residue De Beauvoir v. De Beauvoir, 3 H, L. Cas. that the trustees "distribute" it "to and 524, 550. In deciding that the widow is examong my heirs at law in the proportions in cluded from sharing in the distribution of the testator, in using the words "heirs at, in our statutes in 1896, and, of course, this law” in like manner, intended to designate statute is not applicable in the present case. the persons who at the death of his daugh- [4] Replying to question 2, we are of opinter childless would in strictness then be his ion that the bequest in trust for the use beirs.

and benefit of Sophia L. Clifford and the 17 (3] As to the 17 pecuniary legacies, all the pecuniary legacies did not fall into the legatees survived the testator, but died in residue of the estate, that they are not disthe lifetime of his daughter. It appears that posed of by the will, but devolve as intestate some of them died more than 50 years ago, estate of Samuel Larned. Peckham v. Newthat many of them died testate, and that, ton, 15 R. I. 321, 324, 4 Atl. 761, is cited in if these legacies were held to be transmissi- support of the claim that they have fallen ble, it would be difficult, if not impossible, into the residue, when the court says: at the present time to ascertain into how “It is, however, well settled that lapsed and many parts they would be split up, and in void specific or pecuniary legacies fall into the whom they are now vested. While such a re

residue, in the absence of any indication to the

contrary." sult would be full of difficulty, it would, how

The residuary clause of the will before ever, be unavoidable, if under the will the

us is: intention to impart transmissibility to them

"And all the rest and residue of said trust is clearly apparent. We are of the opinion, funday

ulou, funds, remaining after the payment of said sums, however, that each legacy was given for the and reserving a sufficiency for the payment of benefit solely of the person named. They the annuities provided for in this my will, they

shall distribute to and among my heirs at law.” are payable only in case his daughter died without leaving children surviving her, and

The "intention to the contrary' is found then the trustees are directed to "immediate

in the exclusion of the pecuniary legacies Is thereafter pay the following sums to the

and the bequest in trust for Mrs. Clifford persons hereafter named.” Thirteen of the

from the rest and residue which is to be legacies are sufficiently small as to suggest

distributed. In Davis v. Davis, 62 Ohio St. that the gift in each case was simply a per

411, 57 N. E. 317, 78 Am. St. Rep. 725, it sonal remembrance, some of those 13 are

some of those 13 are appears that the testator directed the creaso small as to make this positively clear,

tion of a fund, from which he made some for example, the five gifts of $50 each; and,

charitable bequests, and then provided that: inasmuch as they are all grouped together,

"The balance be divided between the children

living at my death of the hereinafter named it is not unreasonable to infer that all the brothers and sisters of my late wife and myself, gifts thus grouped should be regarded as viz.” purely personal. Some of them were made. The charitable bequests were held to be to brothers and sisters, who might be re- void, and the question was as to what be garded as the heads of different branches of came of them. the Larned family, and at the same time. It was held that the void legacies did not gifts were specifically made to descendants fall into the "balance" above mentioned, but of such heads of families. There are no passed as disposed-of property. The court words of limitation annexed to any of these says, on page 414 of 62 Ohio St., 57 N. E. legacies, as might be expected, if the testa- 318, 78 Am. St. Rep. 725: tor intended them to be transmissible. We "The 'balance that is given to the so-called think the only intention clearly apparent is residuary legatees is not the general residuum the intention to benefit personally each of

ich I of all of the testator's estate, but only what

remained of a particular fund derived from specnamed legatee, should he or she survive to ified sources, after deducting therefrom the take the gift. And if it was necessary in amount of the charitable legacies and certain the case of each legatee for him to survive

iral other charges upon it. The gift of that D the life tenant in order for the gift to him to the

necessarily excludes from the gift everything

that the will provides shall be deducted from be effective, then, as his own existence at the fund in order to arrive at the balance." some particular future time was to deter

On page 416 it says: mine whether any interest was to take effect

"In King v. Woodhull, 3 Edw. Ch. 79, 82, it in him, the interest was contingent and non- laid down that 'to entitle a residuary legatee transmissible. Brown v. Williams, 5 R. I. to the benefit of a lapsed or void bequest he 309, 316: Tingley y. Harris. 20 R. I. 517. must be a legatee of the residue generally, and

not partially so; for, when it is manifest from 519, 40 Atl. 346; In re Watson's Trusts, L. the express words of the will that a gift of the R. 10 Eq. 36; Strode v. McCormick, 158 Ill. residue is confined to the residue of a particular 142, 41 N. E. 1091. While, therefore, these

fund or description of property, or to some

certain residuum, he will be restricted to what 17 legacies have not in strictness "lapsed,” | is thus particularly given, since the legatee cannevertheless, as already indicated, in reply not take more than is fairly within the scope to question 1 we decide that they were non

of the gift." transmissible and have failed because of the See, also, Power v. Hayne, L. R. 8 Eq. 262; decease of the legatees before the death of Beekman v. Bonsor, 23 N. Y. 298, 80 Am. Dec. the life tenant. The power to dispose by 269; Kerr v. Dougherty, 79 N. Y. 327, 347. will of "contingent, executory or other future In this case the next of kin of the testator at interests," given by section 2 of chapter 254 his death take the property devolving as inof the General Laws of 1909, first appeared testate estate in accordance with the statute

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