Opinion
No. 3542.
Decided June 5, 1945.
In a petition for instructions under a will, the testator's direction that four-sixths of the income from a trust fund be paid to A for the use of A's children equally, indicated no more than a mathematical division on the assumption that A would continue to have only four children, and does not preclude the right of a fifth child born to A from participating equally with the other four children of A. The word "representatives" used in a will has meanings varying in accordance with the context. Questions arising concerning the distribution of the corpus of a trust fund will be answered in a petition for instructions only after a decree of distribution has been made in the Probate Court.
PETITION by the trustee under the will of Sylvanus Brown, late of Windham, requesting the interpretation of certain provisions of the will. Transferred without ruling by Lorimer, C. J.
The testator died in October, 1870. His will, dated March 22, 1870, provided that the residue of his estate should be held in trust. One-sixth of the income thereof was directed to be paid to charitable uses, and is not here involved. Another sixth was to be paid to the testator's son Samuel Brown during his life, and at his death to his widow as long as she lived and did not remarry. At her decease or remarriage, this one-sixth of the income was to be paid to Samuel Brown's issue by her, or to their representatives, as long as any such child should live.
The other four-sixths of the income of the trust fund was directed to be paid to Samuel Brown, to be used by him for the benefit of "each of his children" until the majority of such child or marriage, if a daughter. Upon the happening of either event, the will directed that one-sixth of the income should be paid to the child of Samuel Brown for life. If any child of Samuel Brown should die without issue, that child's part was to be equally divided among the remaining children of Samuel Brown and their "legal representatives."
Upon the decease of all of Samuel Brown's issue, the principal of five-sixths of the income was directed to go in fee "equally to all of his [Samuel's] grandchildren and their legal issue." The will expressed the hope that the Lord would so multiply and increase Samuel's "descendants" that the portion of each should be "small but blessed."
Samuel Brown, son of the testator, died June 9, 1881. His widow Helen died in July, 1899, never having remarried. Samuel and Helen Brown had only four children when Sylvanus Brown made his will — Mary D. (O'Brien), Marcus M., Hiram F. and Anna L. (Churchill). After the death of Sylvanus, there was born to them a fifth child, Caroline W. (Johnson). Caroline is now living, but all of her brothers and sisters are dead. She is without issue, but has an adopted son, Robert Johnson. There are living descendants of her brothers and sisters as follows: two children of Mary D. O'Brien; one child of Marcus M. Brown; no descendants of Hiram F. Brown; five children of Anna L. Churchill (there was a sixth, now dead); nine grandchildren of Anna L. Churchill; five great grandchildren of Anna L. Churchill.
Anna L. Churchill died in December, 1942. Since the death of Helen M. Brown, by written agreement of all of Samuel Brown's children, the five-sixths of the income of the trust fund has been equally divided between all five children and the representatives of such as were deceased.
Grinnell Grinnell, for the plaintiff, filed no brief.
Edwin B. Weston, for the defendants, filed no brief.
The first question presented is whether the trust as to five-sixths of the income terminated with the death of Anna L. Churchill. As to one-sixth, the provision of the will is clear that after the decease of Samuel Brown's widow the income should be paid "to his issue by her in equal shares annually to them or their representatives as long as any of his children shall live." The trust was to terminate only with the death of the last surviving child of Samuel and Helen Brown. Since Caroline W. Johnson is issue of Samuel and Helen, she is a beneficiary of the trust as to one-sixth, and that trust cannot terminate until her death, unless by the operation of the rule against perpetuities.
As to the other four-sixths no difficulty could arise except for the fact that Samuel Brown had only four children when Sylvanus made his will. The will provided that" four sixths of said interest shall be paid semiannually to my son Samuel Brown by him to be used for the benefit of each of his children respectively" till they were twenty-one or married, and then "the said respective sixth part of the accruing interest shall be paid to them individually" for their natural lives. It is clear that Sylvanus did not have in mind the possibility of the birth of a fifth child to Samuel and Helen. But it is equally clear that the provision as to the other sixth of the income was intended to operate for the equal benefit of all of their children. The same is true as to Sylvanus' real estate. By the sixth clause of the will, Sylvanus gave to Samuel the use of the real estate for his life, after that "for the equal use of his children in equal shares," and at the decease of his son's children, the land to go in equal shares "to each legal child or representative of [his] son's children . . . in equal shares to the children at the decease of their father, and at their decease in equal shares to their children respectively, and if they leave no children to their heirs by blood in equal shares."
The word "representatives" has meanings varying in accordance with different contexts. Conant v. Curtiss, ante, 398. Here the testator willed that the real estate should go to all of Samuel's children equally (and to their children, or, lacking children, to their heirs by blood). The wish was clear to benefit all of Samuel's children equally during their lives. Taking all of the provisions of the will into consideration, the controlling wish seems to be that the "sixth part of the accruing interest" to be paid by the trustee on account of each of Samuel's children indicated no more than the mathematical division on the assumption that Samuel continued to have only four children, while the overall wish was that all the children of Samuel should share equally if they survived their parents. On this interpretation, Caroline is a beneficiary of the trust as to five-sixths of the income, and as to that the trust will not terminate until her decease. Meanwhile, since Hiram F. Brown died without issue, the five-sixths of the income is to be divided into four parts, one for Caroline, one for the descendants of Mary D. O'Brien, one for those of Marcus M. Brown, and one for those of Anna L. Churchill.
The questions propounded concerning the distribution of the corpus of the trust fund at the death of Caroline W. Johnson, namely the right, if any, of her adopted son and the proportions in which the distributees will take, are questions that have not yet arisen and as to which the trustee stands in no need of present advice. When they do arise, they will have to be answered in the first instance by a decree of distribution in the Probate Court. Podrasnik v. Company, 92 N.H. 65.
Case discharged.
All concurred.