Tibbetts v. Tomkinson

Sheldon, J. This testator declared, among the somewhat confused provisions as to the dispositions of the trust fund created by the twenty-first article of his will, what was his general intent and governing desire in the distribution finally to be made among his children or their issue. He said, in paragraph ten of that article: “Although the periods of distribution and of partial distribution of the said trust fund ... are different and distinct for each of my several children, due to the difference in their several ages, it is my desire, and I so direct, that my Trustees use every reasonable effort to treat each of my children living at my [252] decease,, and attaining the ages as hereinbefore specified, in an equal and impartial manner, as it has been my endeavor to secure that end under the provisions of this my will.” This general intent must, so far as possible be carried out, even though the result may be to vary from some of his minor directions, so far at any rate as these are expressed in equivocal language or are of doubtful or uncertain meaning. Malcolm v. Malcolm, 3 Cush. 472. Williams v. Bradley, 3 Allen, 270, 280. Barrett v. Marsh, 126 Mass. 213, 216. Metcalf v. Framingham Parish, 128 Mass. 370, 374. Moseley v. Bolster, 201 Mass. 135, 144. And technical canons of construction will not be permitted to control the general rule that the intention of the testator, once ascertained, must govern the decision of the court. Stedman v. Priest, 103 Mass. 293, 296. Ware v. Minot, 202 Mass. 512, 516. One of the children of the testator, Mrs. Tomkinson, has now reached the age of twenty-five years and is entitled to receive a share of the trust fund; and the question presented is whether any and what deductions are to be made from that fund in order to ascertain the net amount of which a fractional part is to be paid to her. 1. All parties agree, rightly in our opinion, that the fund of $20,000 ordered by paragraph two of the twenty-first clause of the will to be set apart from the trust fund as a provision for the payment of certain annuities therein mentioned, must be deducted from the principal of the trust fund before any share thereof can go to Mrs. Tomkinson. That is the plain language of the testator; it is a temporary modification, not in any sense a contradiction, of the general intent which we have stated. With the future disposition of this sum, after the decease of the last survivor of the annuitants, the plaintiffs now are not concerned. They are to be instructed only as to their present duty, not as to what hereafter may become their duty. Quincy v. Attorney General, 160 Mass. 431, 437. White v. Massachusetts Institute of Technology, 171 Mass. 84, 97. 2. As the youngest child of the testator has not yet reached the age of twenty-one years, the homestead and “all fixtures and furnishings thereof” are not to be included in the trust fund of which Mrs. Tomkinson now is to have a share. This too is the [253] unmistakable direction of the testator. The plaintiffs are not now concerned with the question what is to become of the homestead after the coming of age of the youngest child. 3. Nothing should be deducted from the trust fund before making this division to provide, under the paragraphs numbered four and five of this clause, either for the maintenance and support of the homestead and the use and enjoyment thereof by the testator’s widow and children, or for the support and education of his children until they “respectively shall attain the age of twenty-five years.” As to this, the language of the testator is somewhat ambiguous. It seems clear, however, that he intended both of these provisions to stand, upon the same footing; and we are of opinion that his intention is sufficiently manifest. He had made in the earlier part of his will provision for his widow which he deemed ample. Before any distribution was to be made among his children, they were all provided for alike. As they should respectively reach the prescribed age when they were no longer to share in this provision, the fund appropriated for the benefit of the others must be correspondingly diminished if the children were to be kept upon an equality. Otherwise, the provision for the younger children would increase as their elders successively reached the appointed age, until finally the youngest child, for nearly four years, would be potentially dealt with much more liberally than any of his elders had been. This was not contemplated by the testator. The diminution of the necessary charges upon the income of the fund, he must have considered, was to be accompanied by a corresponding diminution of the principal arising from the successive payments or the setting apart of each child’s share of that principal. It is before such diminution, — that is, before any of the children shall have attained the age of twenty-five years, — that the fund is to be held subject to the charges which are now being considered. After that time, each child becomes entitled, on reaching the prescribed age, to his share of the whole fund, subject only to the deductions which have been specifically directed; and such a direction has been given only as to the homestead and the fund of $20,000. 4. For the same reasons the plaintiffs cannot require Mrs. Tomkinson to make out of her share of the fund any con [254] tribution for either of the purposes which have last been considered. The plaintiffs are to be instructed that it is their duty to set apart from the whole amount of the trust fund the homestead estate with “all fixtures and furnishings ” and any proceeds thereof, and also the sum of $20,000 as aforesaid and any accrued income thereof, and to set apart and separate from the residue of said fund one fourth part thereof, and pay over and transfer to Mrs: Tomkinson absolutely one half of such fourth part and to hold the remaining one half thereof for her benefit as provided in the will. For the reasons already stated, no further instructions should now be given to the plaintiffs. Decree accordingly.