Citation Numbers: 200 A. 970, 61 R.I. 232
Judges: CAPOTOSTO, J.
Filed Date: 7/8/1938
Status: Precedential
Modified Date: 1/13/2023
This is a bill in equity for the construction of the second paragraph of the will of Mary E. Alverson, late of the city of Providence. The complainant, William S. Steere, is one of the devisees under that paragraph and the only other complainant is his wife, whose sole interest is such as she may have by virtue of her dower rights. The various respondents are all of the persons known who have any possible present interest in the real estate in question, either under the will or as heirs at law of the testatrix, A representative of contingent interest of persons not in being or not ascertainable was duly appointed. After the pleadings were closed, an agreed statement of facts, to which we will later refer, with a certified copy of the will annexed thereto, was filed by the parties in interest. The cause being ready for hearing for final decree was then certified to this court for determination, in accordance with the provisions of general laws 1923, chap. 339, sec. 35.
The testatrix died November 25, 1884, leaving the above-mentioned will which was dated "this ___ day of November A.D. 1884" and was admitted to probate in Providence, December 30, 1884.
The second paragraph of the will, which we are asked to construe, reads as follows: "Second. I give devise and bequeath to my brother William Russell Steere one half of my house at 66 Federal street and to my nephews William S. and David Howard Steere and other half of said house and estate, this is, one quarter each."
The bill of complaint alleges that there is doubt as to the nature of the estates devised by the second paragraph by reason of the provisions of the seventh and eighth paragraphs of the will, which follow. "Seventh. In the event *Page 235 of the decease of my brother William R. Steere, if without issue, then the estate devised to him shall pass to and be inherited by my nephews the said William S. and David Howard Steere, but if the said William Russell should have children or a child, then the said estate shall be inherited by said child or children of said William R." "Eighth. It is hereby declared that the estates above devised are given upon the following conditions, namely; that no one of the above named devisees, shall sell, mortgage, hypothecate or otherwise anticipate the rents, profits, benefits or income of the said estates, but shall enjoy the regular income from the said estates during their natural lives."
The questions raised by the bill of complaint which have been duly certified to this court are as follows: "1. Did the devisees named in paragraph `Second' of said will take interests in fee simple, or merely life estates in the real estate described therein? 2. If said devisees took interests in fee simple in said real estate, who are the present owners of said real estate and in what proportions? 3. If said devisees took merely life estates, in whom are the remainder interests and in what proportion?"
Public Statutes of Rhode Island, 1882, chap. 182. sec. 5. now G.L. 1923, chap. 298, sec. 14, which was in force in 1884 when the testatrix died, provides in substance that whenever real estate shall be devised without words of limitation, such devise shall be construed to pass the fee simple or other interest which the testator had the power to dispose of by will, unless a contrary intention shall appear by the will. The same result was reached by this court independently of statute in Waterman v.Greene,
The third and sixth paragraphs of this same will were construed by this court in Phillips v. Smith,
Construing paragraph second in the light of the provisions of paragraph seventh, we are of the opinion that the testatrix intended that William R. Steere and the other devisees named in paragraph second should have an estate in fee simple if they survived the testatrix. The event of William R. Steere's death contemplated in paragraph seventh is to be referred to the lifetime of the testatrix. See Harris v. Dyer,
The respondents practically concede that paragraph seventh gives them little, if any, support in their contention that the testatrix intended to devise a life estate in paragraph second. They contend, however, that such intention is manifested by the language of paragraph eighth, which we have already quoted. They argue that, taking the language *Page 237 of that paragraph and its numerical position in the will, it manifests an intention on the part of the testatrix to devise only a life estate to the devisees named in paragraph second.
It is agreed that the problem is to be solved by ascertaining the testatrix's intention. That intention, if doubtful, is to be found by application of well-settled principles of law. One cardinal rule is to give effect to every portion of the will reconciling, if it fairly may be done, clauses susceptible of inconsistent construction. Newport Hospital v. Harvey,
In looking at the eighth paragraph of this will we see that it deals solely with the income from the real estate devised in preceding paragraphs, including paragraph second. The object of the testatrix as to the income from the real estate devised in paragraph second is clearly stated; it is not left to inference. If the language of paragraph eighth means anything, it is at best an attempted limitation upon the manner in which the devisees shall enjoy the income therefrom. A devise without words of limitation, such as we find in paragraph second, according to the statute previously mentioned, is not to be cut down, unless a contrary intention appears by the will. See Goffe v. Goffe,
We answer the first question by saying that the devisees named in paragraph second of the will take interests in fee simple in the real estate described therein. In view of this decision, the third question submitted to us becomes immaterial.
In the second question we are asked to determine, on an agreed statement of facts, the devolution of the title of the property involved in the case, after we have determined the proper construction of the will. In our judgment this matter of the devolution of the title is not germane to the construction of the will and cannot properly be brought into the same suit. We therefore do not answer that second question.
On July 11, 1938, the parties may submit to us a form of decree, in accordance with this opinion, to be entered in the superior court.