Rhode Island Hospital Trust Co. v. Bateman

Frost, J.,

concurring. While I concur in the answers given by the majority to the three questions raised in this case, I am unable to attach the same meaning as the majority to certain inserted words in the fifth clause of the will and therefore feel it necessary to explain my position.

After reading the will as drawn by his counsel the testator wrote in the words, “born and maybe [sic] born (WSB)” thereby causing the first few lines to read, “To divide the same into as many equal shares and separate trust funds as there are children born and maybe [sic] bom (WSB) of my said son Sidney, and my said grandson, Horace, the issue of any deceased said children dying before they attain the age of twenty-five years to' take per stirpes and not per capita * * *.” The words written in are not technical but simple, everyday words.

The testator was an elderly man. His will was executed on August 5, 1948 and he died on December 6, 1948. As I read his words, he clearly meant and referred to children who might be born at the time of his death and children who might be born in the future to either of the two persons mentioned. The fact that the testator wrote them in as he did indicates his intent and his determination to have any children who might be bom either to his son or his grandson share in his bounty. The majority appear to me to read into the inserted words a meaning that is absent. The futurity which the words “may be born” connote is in no way limited by the death of the testator.

Quite naturally when the testator wrote in the words which he did he could not foresee the situation that might develop and the effect that such words could have upon provisions already in the will. He had already provided that a member of the class who had reached twenty-five years should be paid and the trust as to- such one be terminated. The words written in could render it impossible for many years to know the number of children in the class and so make it impossible to know the share of each one. We have, it seems- to me, a will in which there is a clear, conflict in the manifest intentions of the testator, namely, that every child born to either of two persons shares in his property and also that each such child receive his share at" a definite time in such child’s life. Since it is seemingly impossible to carry out each intention with absolute exactness it is necessary to adopt a rule of construction sometimes referred to as a rule of convenience. “The general rule of construction adopted with respect to increase in the class membership is that the class may increase in size until the period of distribution but not after that time. In other words, only the persons within the primary meaning of the class description who are born before the period of distribution can be considered.” 5 American Law of Property, §22.40, p. 346.

Tillinghast, Collins & Tanner, Colin MacR. Makepeace, for complainants. Edwards & Angelí, Walter A. Edwards, Ronald R. Lagueux, for respondent Jonathan H. Bateman. Sheffield & Harvey, J. Russell Havre, (Newport), for respondent William Sidney Bateman, Jr., individually. Corcoran, Peckham & Hayes, Edward J. Corcoran, (Newport), for respondent Dorothy Bateman Beck.

Since no child was born either to William Sidney Bate-man, Jr. or to Horace Palmer Beck, Jr. between the execution of the will and the death of the testator the result is the same in this case as to the closing of the class, whichever of the two meanings is accepted. Having in mind the rule of convenience referred to, I am in agreement with the majority that the class of those children who might take under the trust established in the fifth clause of testator’s will closed on May 4, 1960 when Jonathan H. Bateman became twenty-five years of age. Darling v. Witherbee, 36 R. I. 459.

As before stated, I am in agreement with the answers of the majority to the three questions submitted.

Robeets, J., concurs in the concurring opinion of Mr. Justice Frost. John H. Chafee, for respondent Horace Palmer Beck, Jr. John H. Chafee, Guardian ad litem for Melinda Bateman and Bushnell Bird Beck. Roberts and Coffey, Matthew E. Ward, for respondent Matthew E. Ward, Guardian ad litem for persons not in being or not ascertainable.