1. Where a testatrix, having children and grandchildren the
issue of one of them, makes a will, in form, leaving the income of
her property in trust equally between the children
for
life (saying nothing about the grandchildren), and afterwards
to charities, and on the death of one of the children issueless
makes a codicil distributing the income again among the surviving
children
for life (again saying nothing about the
grandchildren), and the child having issue dies in the lifetime of
the testatrix, leaving these, the grandchildren of the testatrix --
and the testatrix then dies -- the omission of such testatrix to
provide for her grandchildren is to be taken (especially if parol
proofs, admissible by the law of the state, aid such conclusion) to
have been intentional and not to have been occasioned by any
accident or mistake. Hence, the case will not come within the 25th
section of chapter 92 of the Revised Statutes of Massachusetts
(A.D. 1860), which provides for the issue of any deceased child or
children, as in cases of intestacy, "unless it shall appear that
such omission was intentional, and not occasioned by any accident
or mistake."
2. Where two persons, as trustees, are invested by last will
with the whole of a legal estate and are to hold it in trust to
"manage, invest and reinvest the same according to their best
discretion" and pay over income during certain lives, and, on their
efflux, these persons or
their successors, as trustees,
are to select and appoint persons who are to be informed of the
facts by the trustees and who are to distribute the capital among
permanently established and incorporated institutions for the
benefit of the poor, the power given to such two persons to select
and appoint is a power which will survive, and on the death of one
in the lifetime of the testator may he properly executed by the
other.
3. By the law of Massachusetts, as administered by her courts,
in a devise to charitable institutions, in form such as just above
indicated, the objects of the charity are made sufficiently
certain. And, as the question of such certainty is to be determined
by the local law of the state, any objection of uncertainty cannot
be heard here.
Page 73 U. S. 338
The 25th section of chapter 92, of the Revised Statutes of
Massachusetts, A.D. 1860 -- a reenactment, essentially of earlier
statutes -- thus enacts:
"When any testator shall omit to provide in his will for any of
his children,
or for the issue of any deceased child, they
shall take the same share of his estate, both real and personal,
that they would have been entitled to if he had died intestate,
unless it shall have been provided for by the testator in his
lifetime, or
unless it shall appear that such omission was
intentional, and not occasioned by any accident or
mistake."
With this statute in force, Mrs. Loring made her last will. She
had living at this time a son (Josiah) who had, living, three
children, Mrs. Loring's grandchildren, of course, and two
daughters, one married (Mrs. Cornelia Thompson), but not having
issue, and the other single, Miss Abby Loring. By her last will,
Mrs. Loring left the bulk of her estate to two persons, Marsh and
Guild, of Boston:
"To have and to hold the same to them
and the survivor of
them, and their and
his heirs and assigns forever, to
their own use, but in trust &c.; to hold, manage, invest and
reinvest the same according to their best discretion; and to pay
over one-third of the net income therefrom to my daughter, Abby,
during her life; to pay over another third of said income
to my daughter, Cornelia Thompson,
during her life; and to
pay over another third of said income to my son, Josiah,
during
his life, so that the said income shall go to
them
personally, and shall not be liable for their debts or to the
control of any other person; and upon the decease of my said
children severally the shares of said income which they would
continue to take if living shall be retained and invested by the
trustees
until the decease of my last surviving child, and
shall then, with the principal, or trust fund, be disposed of for
the benefit of the poor, in the manner hereinafter provided."
The will proceeded:
"It is my will that when, upon the decease of all my
children,
Page 73 U. S. 339
the trust fund is to be disposed of as aforesaid, the said Marsh
and Guild, or
their successors, as trustees,
shall select and appoint three or more gentlemen, who shall be
informed of the facts by the trustees, and shall determine how, by
the payments to permanently established and incorporated charitable
institutions, my wish to benefit the poor will be best carried into
effect, and my gift may be made most productive of benefit to the
poor; and that thereupon the said trust fund shall be disposed of
and paid over, in accordance with the determination of the said
gentlemen, certified by them in writing, to the trustees."
The daughter, Mrs. Thompson, having died during the life of the
testatrix, Mrs. Loring made a codicil to her will, which, after
reciting the former disposition of the income, proceeded:
"I revoke so much of my will as provides for the said division
of the said income, and its payment in three parts, and order and
direct that the said income be paid, under the conditions and
provisions in my said will contained, to my daughter Abby and my
son Josiah, they me surviving, in equal shares during their joint
lives, and one-half thereof to the survivor of them,
during his or her
life, it being my intention that my said
two children shall have the whole of the said income in equal
shares during their joint
lives if they shall both survive
me, and the survivor of them one-half of the said income
during
his or her life."
After this codicil was made (the testatrix, however,
yet living), the son, Josiah, died, leaving three children. Soon
afterwards, July 16, 1862, Guild, one of the trustees named in the
will, died, and last of all, about four months after this, Mrs.
Loring herself. Guild, having thus died in the lifetime of the
testatrix, Marsh, the surviving trustee, appointed the committee of
three persons whom the testatrix had designated as the persons to
determine the charitable institutions among whom her estate should
go, and the committee named them.
Miss Abby Loring, the single daughter of the testatrix, having
died soon after her mother, unmarried and intestate,
Page 73 U. S. 340
the three children of Josiah Loring, these being the sole
heirs-at-law of Mrs. Loring, the testatrix, now filed their bill
against Marsh and others, to have the estate, or their share of
it.
The grounds of the claim as made here, and in the court below,
were:
1. That the omission of Mrs. Loring was "unintentional, and
occasioned by accident or mistake," and the case so within the
statute.
2. That the power conferred by the will upon the trustees, Marsh
and Guild, to appoint persons to designate the objects of the
testatrix's charity had not been and could not, owing to the death
of Guild, in Mrs. Loring's lifetime, be legally executed.
3. That the devise to the charitable uses was void because, from
defect of capacity to appoint, they were now uncertain and
incapable of being ascertained.
In accordance with the law of Massachusetts, [
Footnote 1] oral evidence was taken on both
sides as to the intention of Mrs. Loring to exclude her son's
children. On the one hand, there was the positive testimony of a
girl or young woman, named Pratt, who stated that she had lived in
Mrs. Loring's family for over seven years, as a "companion" to Mrs.
Loring, but whose services, Mr. Thompson, the son-in-law of Mrs.
Loring, testified were purely servile. This person, who the record
showed had been called by Mrs. Loring as a witness to her will,
testified that she had often, very often, heard Mrs. Loring say
that her son's children should not derive any benefit from her
estate after her death; that this was said both when the will and
after the will and codicil were made, the cause being a dislike
which she had of her son's wife's family. On the other hand, there
was testimony by the same son-in-law that Mrs. Loring exhibited no
dislike to her grandchildren, the complainants, and never expressed
to him any intention of the sort above mentioned. But beyond this
there was no attempt to impeach the testimony
Page 73 U. S. 341
of the first witness, and her character appeared to be fair.
The court below dismissed the bill.
Page 73 U. S. 350
MR. JUSTICE NELSON delivered the opinion of the Court.
The first question in the case arises on the following provision
of a statute of the state of Massachusetts:
"When any testator shall omit to provide in his will for any of
his children, or for the issue of any deceased child, they shall
take the same share of his estate, both real and personal, that
they would have been entitled to if he had died intestate, unless
it shall have been provided for by the testator in his lifetime, or
unless it shall appear that such omission was intentional, and
not occasioned by any accident or mistake."
As it is admitted that no provision was made by the testatrix in
her lifetime for the issue of the deceased son, the question turns
on the remaining clause of the statute, and, so far as regards an
examination of it with reference to the terms of the will, depends
on facts, which may be stated as follows: at the date of the will,
in which a life estate was given to the son, his children were
living, but were not noticed therein by the testatrix, nor in the
codicil of the 14th July the year following, in which the life
income of the son was increased.
There is therefore an entire omission to make any provision for
the issue, or even to notice them in the will, which brings the
complainants directly within the enacting clause of this statute
and entitles them to a share of the estate the same as if the
testatrix had died intestate, unless, in the language of the act,
"it shall appear that such omission was intentional, and not
occasioned by any accident or mistake." Whether or not the omission
was intentional or by mistake may be ascertained from a careful
perusal of the terms of the will or by parol. This is the settled
construction of the statute by several decisions in the courts of
Massachusetts, where it is said that whenever it appears the
testator has, through forgetfulness or mistake, omitted to bestow
anything upon the child or grandchild, the legislature intended to
effect that which it is highly reasonable to believe, but for such
forgetfulness, he would himself have done. And speaking of an
examination of the will as bearing upon the subject, it is observed
that whenever it may fairly be presumed
Page 73 U. S. 351
from the tenor of the will or from any clause in it that the
testator intentionally omitted to give a legacy or make a devise to
a child or grandchild (whose parent is dead), the court will not
interfere.
In the present case it is claimed that by a perusal of the will
or by the parol proof or both it satisfactorily appears that the
omission by the testatrix was intentional, so as to cut off the
grandchildren, the complainants.
The grounds upon which this is urged on the part of defendants
are:
(1) That the grandchildren were living at the time of the
execution of the will and of the codicil, as was also their father,
for whom particular provision was made out of the estate. It is
insisted that the testatrix, in settling upon the portion thus
devised to the father on both of these occasions, must have had
present to her mind the grandchildren; that it is not natural or
reasonable to suppose she could on each of them have deliberately
and solemnly made provision for the father without taking into
consideration the state and condition of his family, which then
consisted of his wife and the three grandchildren, and in
confirmation of this view, cases are referred to where the gift was
to the grandchildren, omitting the parent, and the mere statement
in the will that the grandchildren were the children of the son or
daughter omitted was held conclusive that the son or daughter was
not forgotten, but intentionally omitted -- such as a gift "to the
children of her son Edward" -- or "to grandchildren of his daughter
Sarah." [
Footnote 2]
(2) The studied exclusion of the grandchildren, then living, by
limiting the provision made for the father to a life estate, and,
at his death, giving it over to charitable uses -- and repeating
the same limitation in the following year on the execution of the
codicil. In view of these circumstances and this posture of the
case, it is insisted that the testatrix must have had called to her
mind the children of the son, and also the further fact that, in
the ordinary course of
Page 73 U. S. 352
nature, the children, or some of them, would survive the father,
notwithstanding all which she limited the provision for the father
to a life estate and devised the remainder over from the
children.
It has been argued that the time to which the question of
omission has reference is the time of Mrs. Loring's decease. This,
in a general sense, may be true, because till then it was possible
for her to make provision in a codicil, or by a new will, for the
grandchildren. It could not, therefore, be absolutely known before
her decease that such provision would not be made. But whether the
omission was intentional or by mistake is not confined to this
period; on the contrary, when the question is answered from a
perusal of the will, it is necessarily limited to the time of its
execution. And even when it depends on oral proof, that proof is
received for the purpose of ascertaining the mind of the testatrix
at the same period. For it is the state of her mind at the time of
the execution, generally speaking, that is to be looked to in the
contemplation of the statute, with a view to determine whether the
omission was intentional, or by mistake.
This case has been likened in the argument to that of a child
born after the making of the will, because the grandchildren only
became the issue of a deceased son after the death of their father,
and which occurred subsequent to the execution of the will and
codicil. Whether this be so or not cannot change the aspect of the
case or the principles that must govern it.
Undoubtedly, in the case of a son born after the making of the
will and before the death of the father, the omission to provide
for him cannot be known till the death of the father, for till then
it was competent for him to make the suitable provision. This was
the case of
Bancroft v. Ives. [
Footnote 3] But even in that case it was conceded to be
competent for the adverse party to prove that the omission was
intentional, and evidence was received and examined on the point.
It
Page 73 U. S. 353
was held to be insufficient for the purpose. But, in the case of
Prentiss v. Prentiss, [
Footnote 4] it was held that a child born after the will
and before the decease of the father was intentionally omitted, as
appeared plainly on the face of the instrument. It is doubtless
more difficult to establish that the omission was intentional in
the case of children born after the will than if born before and
living at its date. But it would seem from the course of decisions
that this is the only distinction, if it be one, in the
statute.
Our conclusion on this branch of the case is that upon a perusal
of the provisions of the will, regard being had to the course of
decision under the statute in the courts of the state, it
sufficiently appears, especially in connection with the oral proof,
that the omission to provide for the issue of the deceased son in
the will was intentional, and not by accident or mistake.
The next question in the case is whether or not the power
conferred by the testatrix upon the trustees, L. H. Marsh and S. E.
Guild, to appoint three or more persons to designate the objects of
her charities under the will, has been legally executed.
It is insisted on the part of the complainants that the power of
appointment is a naked authority to appoint persons who were to act
for the testatrix in choosing the objects of her bounty, and to
make known to them such facts as the two trustees should deem
proper to guide or influence them in the selection; that it was a
personal power which looked to the merit and qualification of the
individuals for the discharge of the particular duty; and that
being a naked power, the survivor was incompetent to execute
it.
If the premises are well founded, the conclusion is undeniable.
[
Footnote 5]
We are satisfied, however, that this is a mistaken view of the
authority conferred on the trustees. They were invested
Page 73 U. S. 354
with the whole of the legal estate, and were to hold the same in
trust to "manage, invest and reinvest the same according to their
best discretion," and pay over the income to the three children of
the testatrix during their lives, and, on their decease, the said
Marsh and Guild, or their successors, as trustees, shall select and
appoint the three persons &c., and thereupon the said trust
fund shall be disposed of and paid over in accordance with the
determination of the said persons, as certified by them in writing.
And then direction is given in the will to the trustees to sell and
convey any and all the real estate which may be in their hands, at
their discretion, for the benefit of the charities.
Now it is quite clear from this reference to the will that the
trust conferred upon Marsh and Guild could not have been intended
as a personal trust looking to the fitness of the donees of the
power, as it is conferred upon them and their successors, and, as
the execution of the trust for charitable uses was postponed by the
terms of the will until after the decease of the three children of
the testatrix, it was natural and reasonable to have supposed that
it would not take place in the lifetime of the trustees named, but
would descend to their successors.
But what is more decisive of the question is that inasmuch as
the trustees are invested with the legal estate in order to enable
them to discharge the various trusts declared, it is well settled
that the power conferred is a power coupled with an interest, which
survives on the death of one of them, and may be executed by the
survivor. (
See the authorities above referred to.) It is
not necessary that the trustees should have a personal interest in
the trust; it is the possession of the legal estate, or a right
virtute officii in the subject over which the power is to
be exercised, that makes an interest, which, when coupled with the
power, the latter survives. A trust, therefore, will survive when
in no way beneficial to the trustee.
We have said the trustees were invested with the legal estate
for the purpose of enabling them to perform the various trusts
devolved, such as managing the estate, investing
Page 73 U. S. 355
and reinvesting the funds belonging to it, paying over the
income to the children during their lives, converting the real
estate into personal, and, among others, the selection and
appointment of the committee of gentlemen who were to designate the
donees of the charity. This was one of the incidental trusts or
duties devolved upon them by the testatrix, as trustees of the
estate, upon whom she had conferred such large powers over it, and
which, on the death of Guild, survived with the other trusts to the
co-trustee. No well grounded distinction can be made between these
trusts. If the power survives as to one of them it survives as to
all, as it is apparent on the face of the will that the trustees
were to act in the same capacity in the execution of all of
them.
As it respects this devise to charitable institutions, there can
be no doubt upon the law of Massachusetts, as habitually
administered in her courts, but that the objects of the bounty are
made sufficiently certain by the mode pointed out in the will, and
as the question is to be determined by the local law of the state,
there is an end of the objection.
Decree affirmed.
[
Footnote 1]
Wilson v. Fosket, 6 Metcalf 400;
Converse v.
Wales, 4 Allen 512.
[
Footnote 2]
Church v. Crocker, 3 Mass. 17;
Wild v. Brewer,
2
id. 570.
Wilder v. Goss, 14
id.
357.
[
Footnote 3]
3 Gray 367.
[
Footnote 4]
11 Allen 47.
[
Footnote 5]
Peter v.
Beverly, 10 Pet. 564; 2 Story's Equity ยง 1062, and
cases.
