Shattuck v. Balcom

Morton, J. The first question in this ease is what interest Mrs. Dunlop takes under her grandfather’s will. She is the only surviving child of Sarah Elizabeth Balcom, deceased, who was a daughter of the testator, and a beneficiary under items 18 and 20 of his will, as well as under item 14. The answer to the question involves the construction of items 18 and 20. Mrs. Dunlop’s contention is that she takes the one fourth of the net income which, by clause 2 of item 18, the principal trustee was directed to pay over to a sub-trustee for her mother. She also contends that the sub-trust has come to an end, and that the income should be paid to her directly by the principal trustee. We think that neither contention can be sustained. The principal trustee is directed by clause 2, item 18, to pay over one fourth of the net income to “ George F. Wall as he will be trustee for my daughter Sarah Elizabeth Balcom in terms to be hereinafter set forth.” These terms evidently are contained in item 20. Clause 4 of that item expressly directs that after the death of Sarah Elizabeth Balcom, the income shall be paid by the sub-trustee “ or his successor ” as therein directed till the death of the last of the testator’s four children. This implies a continuance of the trust till that event. The same implication would seem to result from the direction in clause 2, item 18, to the principal trustee, that payments should be made as therein provided “ for and during the lives and the life of the survivor of them [the testator’s children], and like [251] wise during the life of the said Sarah Elizabeth Balcom and Emma Isabella Connell and the survivor of them.” The continuance of the sub-trust would not necessarily defeat Mrs. Dunlop’s claim to the income. It might be possible that the sub-trustee would receive it for her. But the testator directs that after Mrs. Balcom’s death the income shall be paid “ by my said trustee or his successor,” not to her child or children, as would naturally have been the case if they were to receive it, but “ in said ratio.” From the connection in which it is found, we think that the word “ ratio ” imports a payment to certain persons in certain proportions. Unless this construction is given to it, the direction regarding the payment of the income after the death of Mrs. Balcom would seem to be void for uncertainty. . The word “ said ” refers to some antecedent provision, and we think that the reference naturally is to that relating to. the persons and proportions to whom and in which “ the unexpended balance ” referred to in the earlier part of clause 4 is to be paid, namely, “the children of my three children, George F. Wall, Sarah Elizabeth Balcom, and James H. Wall, Jr., share and share alike, the child or children of any child or children of the said George F. Wall, Sarah Elizabeth Balcom, and James H. Wall, Jr., to take by right of representation.” This construction leads to an apparent repugnancy between clause 2, in item 18, and clause 4, in item 20, respectively, and it becomes necessary to consider the former. It is to be assumed that the testator intended the different provisions of his will to be consistent with one another. They are to be construed, if they reasonably can be, consistently with the testator’s intention, so as to avoid repugnancy. In case of irreconcilable differences, a clear and unambiguous provision, coming later in the will, controls, as being more likely to express the final purpose of the testator. For the purpose of arriving at the testator’s intention in respect to any particular portion or portions of the will which are doubtful, the whole instrument will be considered. Dawes v. Swan, 4 Mass. 208. Homer v. Shelton, 2 Met. 194, 202. Williams v. Bradley, 3 Allen, 270, 282. Pratt v. Rice, 7 Cush. 209, 212. Claflin v. Ashton, 128 Mass. 441. Jarm. Wills, (4th Am. ed.) 411. 1 Redfield, Wills, (4th ed.) 443 et seq. [252] Taking the will as a whole, it is apparent, first, that the testator intended to dispose of the whole of his estate; secondly, that he gave the rest and residue, “ including all remainders and reversions,” to the children of the two sons and of Mrs. Balcom, excluding the children of Mrs. Connell, and intended substantial equality between them; and thirdly, that he distinguished between his sons and daughters by giving to the former absolutely, and to the latter in trust, with remainders over. Turning now to clause 2, item 18, we think that the provision in it “the child or children of either of them deceased to receive the portion which would have belonged to said deceased child, saving and excepting the child or children of Emma Isabella Connell,” must be construed to mean either the child or children of George F. Wall and James H. Wall, Jr., or to provide for the case of the death before the testator of the sons, or of Mrs. Balcom, leaving children. Otherwise the child or children of Mrs. Balcom, in case she died after the testator, would take to the exclusion of thos.e referred to in clause 4, item 20, and contrary to the intention of the testator as manifested in clauses 4, items 14 and 15, that in such an event her child or children should take only as members of the same class which, according to our construction, is referred to in clauses 4, items 20 and 21. We think that of the two constructions referred to above, the latter is more natural and reasonable. The implication from the exception respecting Mrs. Connell’s children is quite strong that no other exception as to the children of the two sons and of Mrs. Balcom was intended, and unless such a construction is adopted the child or children of Mrs. Balcom, in case she died before the testator, would take nothing, except to the extent to which they would share in what was left at Mrs. Connell’s decease if she died before them, until the rest and residue was divided; that is, not till the death of the last survivor of the testator’s four children. We find nothing in the will which shows that the testator intended such a result. Whether in case of the death of one of the sons after the testator, leaving children, and a brother or sister surviving him, the share of the income given to him would be paid to his children is not before us, and does not affect, we think, the question which we are considering. For it is plain that the testator distinguished [253] between his sons and his daughters in favor of the former, and that fact well might be held to operate to the advantage of the son’s children, without affecting the question as to what Mrs. Balcom’s child or children would take after her death in the income paid to the sub-trustee for her, or without substantially disturbing the testator’s scheme of equality in the disposition of the rest or residue. The result therefore, on this branch of the case, is that the income is to be divided between Mrs. Dunlop and the children of George F. Wall and James H. Wall, Jr., “ share and share alike.” The remaining question is, What income is to be thus divided ? According to the terms of the sub-trust as set forth in item 20, the sub-trustee was to invest the income received by him and pay over the income derived therefrom to Mrs. Balcom, with such portion of the accrued principal resulting from such investment as he might deem expedient for the purpose of relieving her necessities, and after her death “ to pay over the unexpended balance ” to her children and the children of her brothers, share and share alike. At her death there was a small unexpended balance, consisting of accrued principal and income, which has been paid without objection as directed; namely, to Mrs. Dunlop and the children of George F. Wall and James H. Wall, Jr. The children of Mrs. Connell contend that the income which is to be paid over is the income which the sub-trustee was directed to pay to Mrs. Balcom during her life, namely, the income of the income. It is admitted on all hands that not only in Mrs. Balcom’s case, but in Mrs. Connell’s also, if she should die before either of her brothers, this construction would result in an intestacy as to the principal which thus would be accumulated. That of itself is an argument against it, and there is the further objection that it would defeat the intention of the testator in regard to Mrs. Connell’s children, by giving them a share, in the proceeds of the rest and residue. Again, it hardly would seem reasonable to suppose that the testator intended a further accumulation of income, after directing that on Mrs. Balcom’s death the unexpended balance, meaning thereby the balance of the accrued principal and income, should be paid over to the ultimate beneficiaries. Still further, no intention is manifested on the part of the testator to accumulate a fund for [254] the necessities of the children of Mrs. Balcom and of the sons, as .there is in Mrs. Balcom’s case, and there is no reason therefore for construing the word “ income ” as meaning the income which the sub-trustee was directed to pay to her. We think, therefore, that by the words “ income herein ordered to be paid to her,” in the 20th item, clause 4, is meant the income which the principal trustee is ordered by clause ' 2, item 18, to pay to the sub-trustee for Mrs. Balcom, and that the sub-trustee has no discretion as to its payment, but is bound to pay it over as he receives it. Decree accordingly.