Dyer v. Blair

I dissent principally on the ground that the trustees have no right to sell the real estate specifically devised under the fifth clause. The language of the sixteenth and the seventeenth clauses does not justify an implication that the testator thereby intended to revoke the express devise of specific real estate made to Thomas Suffern Tailer, Jr. and Betty Brown Tailer by the fifth clause. The expressed intention of the testator must control unless that intention is clearly modified or annulled by some other provision of the will or unless, upon an examination of the whole will, an implication appears so plainly to the contrary as necessarily to require that the apparent intention be disregarded. Matteson v. Brown, 33 R.I. 339.

An examination of the will now before us discloses no such imperative implication. On the contrary, a study of the whole will tends to confirm the devise expressly made to Thomas Suffern Tailer, Jr. For example, in the twelfth clause the testator has expressly charged his trustees to provide an annual sum of $6000 out of the income of his trust estate to be used for the upkeep of "Ocean Links" during the life of his son Thomas Suffern Tailer, Jr., or as long as he should so desire. Here is a clear indication that the testator did not intend to vest in the trustees the power to sell "Ocean Links" which he had devised to Thomas under the fifth clause. From this it is also reasonable to assume that the testator did not intend that any of the real estate which he had devised by the fifth clause would be affected by the power of sale given to the trustees in the sixteenth and seventeenth clauses.

The whole will also discloses, in my opinion, a definite scheme or plan of the testator for the disposition of his estate which negatives any intention on the part of the testator to make the fifth clause subject to any later clause in the will. The first part of the will down to the seventh clause consists of clearly expressed legacies and devises containing outright gifts of certain personal and real estate to designated persons. The seventh clause then provides that all the rest and residue of his property of every nature be given to trustees upon certain trusts thereafter clearly set forth in succeeding clauses. This is the second part or trust section of the will, and it is in this section, under the sixteenth and seventeenth clauses, that we find the power given to the trustees to sell any and all of the testator's property.

The only reasonable construction to give that language in the light of the testator's plan and his express devises to Thomas and Betty under the fifth clause, is to say that it does not apply to the property previously disposed of by those devises. Certainly it does not seem reasonable to imply therefrom a limited power in the trustees to sell the real estate so devised on the condition that they segregate the proceeds of such sale so that the devisees may have an option to accept such proceeds or the tax value of the real estate. Such a gift is not one to be found in the will but only in the construction of the court. And such a construction implies an intention on the part of the testator quite different from the one which he expressed in clear language in the fifth clause. This is contrary to the rule several times laid down by this court, and recently restated by us, that the legal effect of plainly expressed provisions of a will must prevail over an implied intention. Barker v. Ashley, 58 R.I. 243.

There are other portions of the court's opinion with which I am in disagreement, but no useful purpose would be served by discussing these points of disagreement at length here. The court's construction is now the legal expression of the testator's intention and as such it must prevail.