# Atwood v. Rhode Island Hospital Trust Co.

> Court of Appeals for the First Circuit · January 14, 1921 · 275 F. 513

URL: https://www.frixlaw.com/law-library/cases/8822131

## Case

- **Full name:** ATWOOD v. RHODE ISLAND HOSPITAL TRUST CO.
- **Court:** Court of Appeals for the First Circuit
- **Decided:** January 14, 1921
- **Citations:** 275 F. 513; 24 A.L.R. 156; 1921 U.S. App. LEXIS 2245
- **Precedential status:** Published
- **Opinion:** Dissent by Bingham
- **Judges:** Anderson, Bingham
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8822131

## Opinion text

BINGHAM, Circuit Judge
(dissenting). As to the question of jurisdiction I agree with the opinion of the majority, but as to the merits of the case I am unable to do so.
The material questions involved in a decision of the merits are: (1) Whether the testator, in the ninth clause of his will, where he referred to the principal of the estate and property held by the Trust Company in trust, referred to it as it existed at the time he republished his will by the codicil, or as it should exist at his decease; and (2) if the latter, whether the circumstances are such that parole evidence is admissible to identify the persons the testator intended should take the residue and define their shares, inasmuch as the facts referred to—■ the persons who should take the principal of the trust estate and their shares therein—might depend upon or be the result of future acts of the donor (the testator) of the trust.
If the testator, by the ninth clause of his will, referred to the principal of the estate and property in the hands of the Trust Company as it existed at the time he republished his will, to identify the persons and define the shares which he intended they should take, there can be no doubt but that parol evidence would be admissible for this purpose, as the reference in the will would be to facts then in existence.
And there would be no' reasonable doubt as to the admissibility of the evidence if the principal of the estate and property held in trust and referred to in the will was created or to be created by a stranger and as it should exist at Mr. Davis’ death, for in such case the existence of the fact or facts referred to in the will would not depend upon the future act or acts of the testator in the establishment of the trust. Harriman v. Harriman, 59 N. H. 135.
It is only in case the ninth clause refers to the principal of the estate and property held in trust as it should exist at the time of the testator’s decease that any debatable question can arise, as the extrinsic fact or facts referred to in the will may be the result of future acts of the donor in changing the donees or their shares in the trust fund; the donor being also the testator under the will. In such case there can be no objection to the introduction of the extraneous evidence, unless it can be said that to do so would be to contravene the .statute of wills.
*525 The question is a fairly close one, and its answer depends largely upon the decisions of the courts through a long series of years, in construing the statute and applying it in cases involving facts of the same character or so similar that they cannot reasonably be differentiated.
My Associates in their opinion take the position that Mr. Davis did not dispose of the residue of his estate by the ninth clause of his will, but undertook by that clause to reserve to himself a power to dispose of it as he should in the future direct by a written instrument other than a will or codicil, and therefore died intestate as to the residue. That this is so appears from the language of the opinion, where they state that the “disposition of this residuary estate is made, not by the will, but by the shifting provisions in the trust instrument,” that “a testator cannot by his will prospectively create for himself power to dispose of his property by an instrument not duly executed as a will or codicil,” that “this is exactly what Davis undertook to do as to the residue of his testamentary estate,” and that “the case is on all fours with Olliffe v. Wells, 130 Mass. 221 , and the other numerous cases to the same effect.” The error of the majority, as I view it, lies in their assumption that Mr. Davis, by the language of the ninth clause of his will, undertook to reserve to himself power to dispose of the residue of his estate by a future instrument, when, as a matter of fact, there is no allusion in that clause of the will to an instrument, present or future, of any kind o1- description.
It will be seen by looking at the will that it does not refer to a trust instrument, but refers to a trust fund and the rights of the donees in that fund, and that it gives the residue of the estate to the same persons and in like shares as those who shall take the principal of the estate and property held under the trust. It is an absolute disposition—not a reservation of a power of disposal; and, if this is so, the question is one as to the admissibility of extraneous evidence to explain and make certain the language of the will and thus identify the persons who are to take the residue and define their shares.
Now let us look at the trust deed as it existed, when the codicil was made and later when Mr. Davis died, and see whether it refers to the residue under the will or in any way undertakes to dispose of that residue. It can be stated without fear of contradiction that the trust deed never at any time or in any way referred to the residue of the estate under the will. Hence it is not even arguable that Mr. Davis intended to dispose of the residue under his will ky the trust deed. As the trust deed does not undertake to dispose.of the residue of Mr. Davis’ estate, it is of no consequence whether that instrument, in the disposition of the inter vivos trust fund, is or is not a testamentary instrument. It is not and cannot be as to the residue under the will, for it does not undertake to dispose of it. It simply disposes of the trust fund deposited by the donor with the trustee during the donor’s lifetime, and, under the law of Rhode Island and Massachusetts, would not be testamentary as to its disposition of that fund. Talbot v. Talbot, 32 R. I. 72, 103, 78 Atl. 535 , Ann. Cas. 1912C, 1221; Stone v. Hackett, 12 Gray, 227 .
*526 There are vital distinctions between this case and that of Olliffe v. Wells. In Olliffe v. Wells the language of the will was:
“13th. To the Rev. Eleazer M. P. Wells, all the rest and residue of my estate, to distribute the same in such manner as in his discretion shall appear best calculated to carry out wishes which I have expressed to him or may express to him.”
In that case the testatrix did not dispose of the residue of her estate by her will, for she did not undertake by the language used to disclose who her beneficiaries were, or state circumstances by which they might be identified and their shares ascertained. She simply undertook to reserve a future power of disposal and in a manner not authorized by law. Not having disposed of the residue of her estate by her will, the extraneous wishes which she had expressed or might in the future express to Rev. Mr. Wells relating to its disposition were necessarily testamentary, and, not having been set out in a subsequent will or codicil, no other conclusion could have been reached than that she died intestate as to the residue. To have received extraneous evidence of her wishes would have been to contravene the statute of wills. I do not question the correctness of the decision in that case. My position is that it has no application to the facts in this case, and belongs to a class of cases .such as Johnson v. Ball, 5 De G. & Sm. 85, 91, and Thomas v. Anderson, 245 Fed. 642 , 158 C. C. A. 70 , relied upon by the majority of the court in their opinion.
The language of the ninth clause of the will is as follows:
“Ninth. I give, devise and bequeath all the remainder of the property, real, and personal, of which I die possessed or over which I have power of disposition, including any of the foregoing gifts which shall fail for any reason, but excepting the remainder in my real estate in said Newport after the decease of my said wife and the said Emma B. Andrews, to my said executors, or any duly appointed administrator of my estate, in trust nevertheless, to convert the whole of said property into cash as soon as reasonably possible, with power for this purpose to sell the same or any part or parts thereof at either private or public sale, and the net proceeds of such sale or sales to pay over to the said Rhode Island Hospital Trust Company to be held, managed and disposed of as part of the principal of the estate and property held by it in trust for my life and the lives of others in the same manner as though the proceeds of such sales had been deposited by me as a part of said trust estate and property; and the receipt of said Trust Company shall be a full discharge to my said’executors or administrators relieving them from all further liability or accountability in respect thereof. And I devise to the said Rhode Island Hospital Trust Company after the deaths of my said wife and the said Emma B. Andrews the estate in said Newport hereinbefore given to them for their lives, but in trust nevertheless for said Trust Company to convert said estates into cash as soon as reasonably possible after it becomes entitled to the possession of said estates, hereby empowering said Trust Company in the discretion of its officers or committee having the charge of trust estates and with the approval in writing of the said Thomas L. Manson and Herbert Parsons or the survivor of them so long as both or either of them is living, to sell said estates from time to time at either private or public sale, and to add the net proceeds of any such sale or sales to the principal of the trust estate ana property then held by it under the trusts theretofore created by m such persons and in such shares as the son had disposed of the same, “by his last will and testament duly made and executed by him at any time.” The son died leaving a last will, and the father thereafter made a second codicil, confirming his will and prior codicil. Whether the doctrine of incorporation by reference prevails in New Jersey the opinion does not disclose. The ground of the. decision was that of the Piffard Case. The gist of the decision, as stated by the court was that the son’s will could be—
“referred to for the purpose of ascertaining tlie person to whom that estate [the residuary estate of the father] passes by the father’s will. The latter *534 instrument effectuates what the son attempted to do, but could not do by his own will.”
Whether the New York and New Jersey courts were right in the construction which they placed, in the former case on the husband's will, and in the latter on the. father’s, is of little consequence so far as the questions with which we are dealing are concerned. The important thing is that they construed the respective wills of the testators as making complete dispositions of their property, and as referring to the future wills of the wife and son simply as extraneous facts explaining and defining the meaning of the language used in the testator’s wills; that these extraneous facts were not testamentary acts —that is, did not dispose of the husband’s or father’s property—and could be shown by parol to make definite the dispositions under the husband’s and father’s wills.
The case of Curley v. Lynch, 206 Mass. 289 , 92 N. E. 429 , is not in conflict with the Fowles or Condit Cases. In Curley v. Lynch, the scope of the inquiry by the court was limited, for—
“it was agreed that the only questions involved in the ease were whether a valid power of appointment was given to Mary E. Lynch during her life by the will of her husband, and whether she could, or did by her will, make a valid .appointment under such power, and also whether her nephews and nieces took under the wills of Eugene Lynch and Mary E. Lynch any interest in his estate.”
In that case Eugene Lynch, the husband, by his will, divided the residue of his estate into two equal parts, one of which he designated as the Mary E. Lynch trust estate, and devised and bequeathed this part to trustees (1) to pay the net income in quarterly payments to his wife during her lifetime; and (2) after her death to make equal division of said part and pay over one of said equal divisions "as my said wife shall in and by her last will and testament devise and bequeath the same.”
Mary E. Lynch died January 23, 1909, three days before her husband, leaving a will in the residuary clause of which she stated:
“All the rest and residue of my property, inducing my stocks * * * I give, devise and bequeath to my nieces and nephews, there being seven in number. * * * ”
The wife’s will was made four days before the husband’s. It was held (1) that the power of appointment given in the husband’s will did not and could not come into existence until the husband’s death; (2) that, the wife being then dead, “the power itself never came into existence”; (3) if the language of the wife’s will could be regarded as an attempt to exercise the power given under the husband’s will, it was a mere nullity; and (4) that although her will was in existence at the time the husband executed his will, and might have been incorporated in his will, the language of his will did not warrant such an interpretation, as it referred to “whatever last will his wife should leave at her decease, whenever she might execute it, and not solely to the will which, as he knew, she had then executed.” All that this case stands for is (1) “that 'Mrs. Lynch took no valid power of appointment under the will of her husband, and did not by her will make *535 a valid appointment of any part of his estateand (2) that the wife’s wiil was not incorporated by reference in the husband’s will. The question was not considered whether there was language in the husband’s will manifesting an intent to devise and bequeath one-half interest in the Mary E. Rynch trust estate to the persons and in the shares in which the wife had devised and bequeathed the residue of her own estate, and his will contained no language, as did the will in the Piífard Case, capable of such construction.
In view of the principles announced in the foregoing decisions, and many others which I’ have examined, but find it unnecessary to refer to, I am of the opinion that Mr. Davis did not die intestate as to the residue of his estate; that when he, in his lifetime, delivered the securities of the value of $2,000,000 to the trustee, with the trust instrument or instruments explaining and characterizing his act or acts, vested interests in certain shares of the trust fund at once accrued to the beneficiaries therein, which could only be divested or changed upon the happening of a condition subsequent occurring in the donor’s lifetime and which became indefeasible upon his death (Stone v. Hackett, 12 Gray [Mass.] 227; Talbot v. Talbot, 32 R. I. 72, 103, 78 Atl. 535 , Ann. Cas. 1912C, 1221); that having died leaving in existence the trust fund, with donees having vested interests therein, and a will in which he describes his legatees and their shares in the residue of his estate by reference to the trust fund, stating that it should be divided in the same way and go to the same persons as the trust fund would go at his decease, the trust, as it existed at his decease, may be referred to as an extraneous fact, to make certain the meaning of the language of the will, and, this having been done, the residue passes under the will, and not by force of the trust deed, in the shares and to the persons thus made certain.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8822131. Public record. Not legal advice.