Schaffer v. Wadsworth , 106 Mass. 19 ( 1870 )

Wells, J.

The testator, after sundry bequests, directed that all his remaining property should be divided into four equal parts. He gave one quarter each to a son and daughter. The other two quarters he gave to his executors, to invest and hold in trust. One half of the income he directed to be paid annually to his daughter, Harriet Kellogg, during her life. All parties assume that this life interest is not shortened by the subsequent provision for sale and distribution. The other half of the income he directed to be paid annually for the benefit of the children of his daughter Amelia, deceased ; but there is no limitation, in terms, for this interest in said income.

The next clause'is as follows : “ And I do further direct that, after the expiration of fifteen years from the date of this instrument, or as soon as my youngest living grandchild shall have reached its majority, said real estate, so held in trust by my executors as aforesaid, shall be sold, and the proceeds thereof shall be equally divided, per stirpes, between the legal heirs and representatives then living of my son John, my daughters Esther and Amelia; and then and at that time my said executors shall be discharged from their said trust.”

All parties assume that the property thus to be distributed consists of the whole of the two quarters held by the executors in trust, and of that alone; and that the result of all three provisions will be to give to the children of Amelia, after the termination of the trust, only one half of what would be their equal share of the testator’s estate. The question now presented is whether the trust is divisible, so that one half of the property held in trust must now be distributed, and the half of the income thereof, heretofore payable for the benefit of the children of Amelia, cease to be so payable.

The plaintiff relies upon the terms of the provision for distribution, as requiring it to be made at the expiration of fifteen years from the date of the will, or earlier if the youngest living grandchild should reach majority within that period.

Taking the clause which contains this provision by itself, it would require the distribution to be made at one or the other of these periods. But it requires the whole to be so distributed; and there is nothing in the will to indicate that it was contemplated that any part should be distributed until the trust should be terminated. On the contrary, by the terms of this same clause, and as a result of the distribution therein directed, it is provided that the trustees shall then be discharged from their said trust. This clause fixes the time for the termination of the trust in as absolute and unqualified a manner as it does for the distribution of any part of the trust property.

But from the preceding clauses it is manifest, as it is conceded by the plaintiff, that the trust must continue during the life of Mrs. Kellogg, and at least one half of the trust property be withheld from such distribution, if now made. We think also that the will indicates that the trust property was intended to be held as one fund, the income only to be divided during the continuance of the trust. The provisions of the will appear to have been drawn upon the supposition that the period of fifteen years would extend beyond the life of Mrs. Kellogg. After her decease, the half of the income until then payable to her was to be divided between Esther, John, and the children of Amelia, the trust continuing. We think the period, fixed alternatively in the clause requiring distribution of the trust property, must yield to the necessity of the continuance of the trust during the fife of Mrs. Kellogg, and the manifest intent of the testator that the provision should be carried into effect by the discharge of his executors from their trust at the same time with the distribution therein directed, It is conceded that it must so yield, as to one half of the trust property, in order to satisfy the bequest to Mrs. Kellogg. This results from the principle of construction that all the provisions of the will are to be considered together in order to ascertain the real intent of the testator; and that particular directions must yield to the general intent, if inconsistent therewith. But the office of construction is to ascertain the intent of the testator; not to supply a judicial administration of the estate. The intent of the testator, as thus ascertained, makes the termination of the trust and distribution of the trust property subsequent, in the order of events, to the expiration of the life interest of Mrs. Kellogg. Although that intent is found in provisions which extend to only one half of the income of the trust, its operation, when found, is not to be limited in like manner. As already suggested, the will contains no indication that any part of the property was intended to be distributed until the termination of the trust, but the contrary. It may be said that if the provision for distribution was drawn, as it would seem to have been, upon the supposition that the life interest of Mrs. Kellogg would end before that time, there could be no intent to postpone the distribution of the property beyond the period particularly designated; and that the postponement conceded results only from the necessity of the case in the practical execution of the will. But that supposition excludes the idea of any particular intent of the testator, applicable to the contingency which has occurred. The court cannot supply what it may be supposed would have been his intent if he had undertaken to express one. But the general intent that the trust should continue during the life of Mrs. Kellogg, and that the termination of the trust and distribution of the property as one fund should take place at one and the same time, both of which do appear from the will, must therefore govern in the construction and execution of the will, TU-her than a direction which, in the contingency that has happened, is manifestly inapplicable, and incapable of being carried into effect without essential modification.

Under this will, we are of opinion that no distribution can take place during the life of Mrs. Kellogg; and that until distribution the trust is to remain entire, and the income to be divided according to the terms of that trust.

We see no grounds for interference with the mode of investment adopted by the trustees. Bill dismissed, with costs.