Tudor v. Vail , 195 Mass. 18 ( 1907 )

Kvowltoít, C. J.

The plaintiff is the trustee under two indentures signed by James A. Garland, for the benefit of his wife Marie T. Garland, one bearing date September 28, 1904, and the other January 14,1905. The second contains an article as follows: “ Fifth. This agreement is intended to carry into effect said agreement of September 28, 1904, according to the true intent and meaning thereof and if there shall be any conflict between the provisions hereof and said former agreement, then the provision of this agreement shall be held to be controlling as expressing the real intentions of the parties.” James A. Garland and his wife had been divorced. When the first indenture was made they were contemplating remarriage, and when the second was executed the remarriage had taken place. He has deceased, leaving a will, and the principal question is whether the trust created by the indentures has terminated. By reason of the second indenture and the action of the parties under it the first has become of little consequence. Possibly its words may throw light upon the meaning of slightly different language in the second, and upon the construction of- the settler’s will.

It is plain that the trust was not terminated under the provision of clause (0) of the second indenture; for by the terms of that clause the trust would come to an end only by the execution in James A. Garland’s will of a power of appointment under the will of his father, which should secure to his wife “ an income of ten thousand dollars ($10,000) per annum during the term of her natural life.” The ninth article of the will of James A. Garland, which assumes to exercise the power, secures this income to her only so long as she shall remain the testator’s widow, and makes the provision conditional upon her releasing her rights under the indenture. The trust is not affected by this article of the will.

Clause (D) of the indenture declares that the trust shall determine “ upon the death of the said James A. Garland leaving the said Marie T. Garland him surviving, if in and by his last will and testament the said James A. Garland shall otherwise than as above provided in clause (0) provide for her an income of ten thousand dollars ($10,000) or more per annum and she shall elect in writing, within one month after the probate of his will, to accept such last mentioned testamentary provision.” By the residuary clause of his will he provided for her an income of more than $10,000 per annum, and she elected in writing, within one month after the probate of the will, to accept the provision. While she made her acceptance absolute, she did not admit that she thereby relinquished her rights in the trust fund created by the indenture, but attempted to retain them. The duration of the period for which she should receive income under the residuary clause of the will was stated in these words: “ during her life so long as she shall remain my widow.” The question arises whether an income which she elects to accept, and which will continue during her life unless she marries again, answers the meaning of clause (D) of the indenture. The widow contends that nothing less than an income absolutely and at all events for life would answer the requirement of the clause.

It is to be noticed that there is a difference between clause (C) of the indenture and clause (D) in this particular. In the former the payment of the income must be “ during the term of her natural life,” and this provision is to terminate the trust without reference to her wishes, while in the latter the required income is to be the same in form and amount, but it is not stated to be for any particular time, and it terminates the trust only if, within one month after the probate of the will, she elects in writing to accept it. If the two provisions were exactly alike in the use that she could make of them, there is little, if any, reason why one should take effect independently of her wishes and the other should be dependent on' her election. If we assume that the clause means an income of which she may have the benefit for her life if she chooses, we are of opinion that the fact that it is made terminable on a condition subsequent, dependent on her voluntary act, does not make it the less such an income as was meant by the indenture, if she elects to accept it. The suggestion that it shall be an income which may be made available for life comes only by inference. We may assume that she would not be content with anything less. The income must be of such duration as she is willing to accept; but there is no express statement as to the length of time of its continuance. The implication of meaning to be derived from the circumstances and the context does not necessarily go further than to call for an income which shall be for life at her election.

Under this clause her husband, by his last will and testament, is to provide for her an income of $10,000 or more per annum. This naturally means an income for her as his widow. Presumably, on remarriage she would cease to need a provision from him. So long as she remains his widow would be as long as he would be expected to provide an annual income for her support. We are of opinion that such a provision, with her acceptance of it, satisfies the intention of the parties as it is expressed in clause (D) of the indenture. The trust was terminated on her election in writing to accept this provision.

The remaining question is, What shall be done with the fund in the hands of the trustee ? The language of the indenture on this subject is as follows: “ Upon any determination of said trust the principal of the trust fund shall be forthwith paid over to the said James A. Garland, if living, and if not, then to such persons as shall be appointed by his last will and testament to receive the same, and in default of such appointment then share and share alike unto the children of the said James A. Garland and Marie T. Garland and their issue per stirpes and not per capita.”

This provision, taken as a whole, differs but little from a statement that it shall be treated as a part of his estate. The settlement upon the widow was in-lieu of dower. The precise question before us is whether his will is to be treated as an appointment of it, or whether it passes to his children in equal shares. The fact that the testator was domiciled in Rhode Island when his will was proved does not affect the decision of the case. The common law of Rhode Island is presumed to be like that of Massachusetts, and if it were not, the law of this State would govern in the administration of a trust created and existing in Massachusetts. Hazen v. Mathews, 184 Mass. 888, 391. Sewall v. Wilmer, 132 Mass. 131.

The will contains a residuary clause, giving, in broad terms, all the property of every kind of which the testator is possessed, and to which he is entitled, to trustees who are the same persons named as his executors. He knew of this property of which he had the power of disposal by his will. He made a special provision in regard to it in case his wife should accept the benefit given her under the ninth article of his will. She did not accept it, and this special provision does not take effect. He also knew that he made another provision for his wife, which, if she elected to receive it, might terminate the trust under clause (D) of the indenture. We have the residuary clause of the will, which, treated as an appointment, makes the same disposition of this fund which he made under the ninth article of the will that did not take effect.

It is a general rule that such a residuary clause will operate as an appointment unless there is something in the will indicating a different purpose on the part of the testator. Stone v. Forbes, 189 Mass. 163, 170, and cases cited.

We are of opinion that there was a valid appointment of this fund in the will of James A. Garland, and that it should be paid over to the persons who are executors of his will. Olney v. Batch, 154 Mass. 318.

Decree accordingly.